COMMONWEALTH OF AUSTRALIA v STANKOWSKI

SHELLER JA : Introduction At 8.56 pm on Monday, 10 February 1964, two vessels of the Royal Australian Navy, HMAS Melbourne and HMAS Voyager, collided resulting in the loss of 82 lives. The plaintiff, Stephen Stankowski, was at that time a sailor on board the Melbourne. He was almost 19 years old, having been born on 20 April 1945 in Hargen, Germany. He enlisted in the Navy in January 1961 aged 15 years and 9 months and held the rank of mechanical engineer. In 1999, the plaintiff brought proceedings in the Common Law Division of the Court against the defendant, Commonwealth of Australia, alleging that the collision was caused by the negligence of its officers and servants and that as a result of the collision the plaintiff suffered loss and damage. Ultimately, in his statement pursuant to Pt 33 r8A of the Supreme Court Rules , the plaintiff particularised the injuries he suffered as “a chronic post-traumatic stress disorder (PTSD), dysthymia, alcohol abuse, depression, anxiety, hypertension, and irritable bowel syndrome”. The plaintiff claimed economic loss and, relevantly, an amount for loss of a navy pension consequent upon his not re-enlisting on 7 January 1973.

The hearing of the proceedings began on 29 September 2003 before O’Keefe J and a jury of four. On 7 October 2003, the fifth day of the hearing, O’Keefe J discharged the jury after his Honour received a note from the jury on 1 October 2003 asking three questions. His Honour held that in the circumstances the apprehension by the plaintiff that the jury, or at least one member of the jury, might not bring an impartial and unprejudiced mind to the resolution of the case was not unreasonable. On 10 October 2003, O’Keefe J ordered that the trial continue before him sitting alone. After written and oral submissions, his Honour reserved his decision, which he gave on 22 March 2004.

His Honour found for the plaintiff and awarded damages as follows: “(i) $239,437.50 for general damages and interest on the component relating to the past; (ii) $7,500 to cover the cost of future psychiatric consultations; (iii) $12,500 to cover the cost of future medication; (iv) $56,250 in respect of the lost chance of rejoining the Navy in 1981; (v) $62,163.64 as interest on the amount referred to in (iv) above. These amounts total $377,851.14. “ The defendant was ordered to pay the plaintiff’s costs.

On the same day his Honour ordered the defendant to pay the plaintiff’s costs on an indemnity basis between 28 January 2000, when the plaintiff made a formal offer to settle the proceedings on the basis that the defendant pay $200,000 plus party/party costs which the defendant did not accept, and 18 December 2002, the day before the plaintiff made a further offer of compromise in accordance with the Supreme Court Rules to settle the proceedings on the basis the defendant pay $450,000 plus party/party costs which the defendant did not accept, and from 19 September 2003, two days after the plaintiff wrote a Calderbank offer letter to the defendant offering to settle the proceedings for the sum of $225,000 plus party/party costs, to date, and ordered the defendant to pay interest on the amount of the costs assessed to be paid by it, such interest to accrue as from 21 days of the day of filing or lodgement for assessment by the plaintiff of its bill of costs.

The defendant appealed from O’Keefe J’s decisions on the following grounds: “1. His Honour erred by discharging the jury and proceeding to conduct the trial before judge (himself) alone: (a) apprehended bias was not ‘firmly established’; (b) it was not established that there was reasonable basis to apprehend that the jury had prejudged the matter and had closed mind to argument or evidence in support of a contrary conclusion; (c) nothing had occurred that could not be dealt with by the direction already given to the jury, alternatively, by further direction to the jury; (d) his Honour erred in principle by not appreciating any or all of (a) – (c); (e) no question of balance of convenience arose, but, if it did, the balance of convenience was in favour of continuing with the jury, as were the interests of justice; (f) alternatively, another jury ought to have been empanelled and the trial should have proceeded before it. 2. His Honour’s decision was vitiated by procedural unfairness. 3. His Honour failed to determine the Commonwealth’s case upon a consideration of the real strength of the evidence upon which it relied. His Honour did not deal with much of what was submitted by the Commonwealth. 4. His Honour failed to use, or palpably misused his advantage, or acted on evidence that was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. … 6. As his Honour’s acceptance that the plaintiff had suffered, and continued to suffer PTSD, was vitiated by error, his Honour’s award of $150,000 general damages was excessive and there was no proper basis for his award of damages for future psychiatric consultations and future medication. 7. No damages ought to have been awarded for loss of chance of a pension. In specifically awarding damages for the alleged loss chance of a pension, his Honour: (a) applied the wrong test in so far as he addressed the chance of the plaintiff rejoining the Royal Australian Navy (RAN) in 1973, rather than the chance of him doing that and remaining until the completion of the further term of service required to qualify for a pension; (b) ignored evidence from the plaintiff and Mrs Stankowski to the effect that it was not intended that the plaintiff rejoin the RAN; (c) erred in allowing any amount when the plaintiff had failed to establish that the value of any lost chance of a pension exceeded any amount by which his actual earnings outside the Navy between 1973 and 1981 exceeding what he would have earned in the Navy during that period had he continued to serve; (d) ignored that the Cumpston Sargeant Truslove report dated 6 October 2003, upon which he relied for his base figure of $298,682 (rounded up by his Honour to $300,000) included an amount of $17,839 for future psychiatric care (Ex N, page); (e) erred in failing to take into account that the date on which the Plaintiff would become entitled to a pension was 1984 not 1981. … 9. His Honour also erred in awarding interest on costs assessed to accrue from 21 days of the filing or lodgement for assessment by the Plaintiff of its Bill of Costs.”

The plaintiff cross-appealed on the ground that the trial Judge erred by assessing the chance that the respondent would have re-joined the Navy in 1973 at only 25 per cent. Factual summary

The plaintiff enlisted in the Navy in 1961 for 12 years and, after serving in various other RAN vessels, was posted to the Melbourne on 28 December 1962. At the time of the collision on 10 February 1964 the Melbourne and the Voyager were engaged in night flying exercises with other vessels. As part of those exercises it was necessary for the Voyager to change position from the starboard to the port side of Melbourne. For reasons never adequately explained in subsequent naval enquiries and two Royal Commissions, the Voyager accelerated and cut sharply across the bows of the Melbourne. The Melbourne was proceeding at 22 knots.

The bow of the Melbourne struck the Voyager at the after end of her bridge at a time when she was almost at right angles to the Melbourne. The force of the impact heeled the Voyager sharply onto her starboard side. Debris from the Voyager was thrown up onto the Melbourne’s flight deck. High pressure, steam and black smoke cascaded from one of the Voyager’s ruptured boilers. The momentum of the Melbourne, a vessel of 16,000 tons standard, 19,950 tons deep load, pushed the Voyager, a vessel of approximately 3,000 tons, bodily through the water until the Voyager broke in two. Her bow section then passed down the port side of the Melbourne and the stern section down the starboard side. The bow section of the Voyager turned over on its side off the port quarter of the Melbourne and sank about 10 minutes later taking down with it a large number of the Voyager’s crew.

The Voyager’s stern section, with the stern facing aft scraped slowly down the Melbourne’s starboard side, emitting quantities of steam and black smoke. The Melbourne’s engines were reversed and the vessel was brought to rest with the Voyager’s stern section some 600 feet off Melbourne’s stern. Subsequently the vessels drifted apart to a distance of approximately 1000 yards. A little later the Melbourne was moved away to avoid a second collision. The stern section of the Voyager sank at 18 minutes after midnight on 12 February 1964.

Sailors from the stern section of the Voyager leapt into the water in which there was a deal of debris and oil. Some were able to get onto life rafts. The survivors were spread over an area of up to half a mile around the Voyager and there were bodies of dead sailors amongst the living. Initially the sea was calm but there was a four to five foot swell that made it difficult for rescue boats launched from the Melbourne. Later the weather became a cause for concern with a gale warning being issued for the Bass Strait area.

Orders were given for accommodation ladders, drifter ladders and scrambling nets to be put over the side of the Melbourne to facilitate the taking on board of survivors. Rescue operations by the sailors of the Melbourne proceeded under the command of individual officers. Helicopters arrived in the area, but darkness and other factors prevented more than two of the helicopters from operating safely. A rescue was effected by one helicopter, but in the main the survivors in the water were not anxious to be winched up from the water. Most of the survivors were picked up by boats that had been launched from the Melbourne.

The rescue operations continued for some time and just before 3 am the Melbourne began to leave the area, slowly, because of the extensive damage that had been occasioned to its bows. She arrived back in Sydney early on the morning of 12 February 1964, berthing at Garden Island.

The plaintiff did not see the collision. When it occurred, he was below decks. However, he claimed to have seen the aftermath of the collision and at least part of the rescue operations. Findings

According to O’Keefe J’s findings, at the time of the collision the plaintiff was in the shower five decks down into the body of the ship. The plaintiff gave evidence describing the crash, the lights going out in the bathroom and he and others going up a hatchway on to the mess deck where he quickly donned a pair of overalls and a pair of sandals before going to his muster point one deck up from where he had been showering. He said that “curiosity got the better of me and I went on the upper deck to have a look”. He said that he saw the back half of the Voyager still with lights on and with steam coming out of it. The events described accorded with the description included in the official report prepared by Captain Robertson RAN, the captain of the Melbourne. The plaintiff said that he saw men jumping into the water and boats milling around the back of the Voyager picking up the survivors. He observed large cargo nets that had been rigged over the side of the Melbourne, alongside which the boats that were bringing the survivors, attempted to pull. The survivors were helped up the nets by members of the crew of the Melbourne including the plaintiff. He said that the survivors were “very dirty, very stunned, shaking and, yeah, their eyes just looked dead”. O’Keefe J said that the evidence revealed that the plaintiff was not the only one to observe this. His reaction to what he saw when engaged in this task was that he felt “terrible”. The official reports indicated that some of the survivors appeared too shocked or too injured to swim when they were rescued. Some were bleeding, some were stretcher cases, and some were vomiting. Although the plaintiff did not give chapter and verse concerning this, the official record shows that the bringing of survivors aboard the Melbourne was a very “impactive” event. O’Keefe J observed that the effect which the plaintiff asserted it had on him at the time was not only understandable but was something that one might well expect.

Later that night the plaintiff was directed to help clean up the survivors by wiping the oil out of their faces and out of their eyes. When engaged in these various activities he said that he had particular concern in that he thought “we might be next”, and was very concerned for the safety of one of his mates named Nick. O’Keefe J said that it was apparent from the description of the events around the Melbourne following the collision that there was a lot of lighting, probably search lights from the Melbourne, lights from the vessels that had been launched to rescue survivors and, a little later, from the helicopters. The plaintiff said that he was observing the stern section of the Voyager when the lights on it began to dim, the steam stopped gushing out and it slowly turned stern-up and sank to the bottom.

The Melbourne set out for Sydney at approximately 3 am on 11 February at a very slow speed, described as slow ahead. At a later time the speed was increased to “revolutions for 8 knots” but this produced at best 6.5 knots through the water and the weather and wind conditions slowed the Melbourne down even further, so that its best speed was in the order of 4.5 knots. It took over 24 hours for the vessel to reach Sydney. At that time of year it was getting light at 4.26 am, ie even before sunrise at 5.25 am.

According to Captain Robertson’s report, which was dated 19 February 1964, at about 9 am on Tuesday, 11 February, in the course of the voyage to Sydney, Captain Robertson addressed the ship’s company over the main broadcast. Later in the day, after directions regarding communications with the press had been received, Captain Robertson gave the ship’s company some advice on this subject and asked that whatever they may say to persistent reporters they should not quote his account given to them earlier that day. Captain Robertson said in his report that so far as he was aware this confidence had been respected by both the Melbourne’s ship’s company and the survivors from the Voyager who were on board at the time.

The plaintiff said that when he came ashore he and his mates took to the bottle. The feelings experienced were exacerbated when, late on his first night ashore, he was called a murderer by some civilians in a hotel where he was drinking. Drinking to excess became a common occurrence for him after the collision. He would drink until he had to be “carried back on board or stagger back on board”. He said that he had not engaged in behaviour of that kind before the collision. Even after he left the Navy in 1973 he persisted with excessive drinking. At one stage, in about 1985, this was sufficiently bad to put his employment in jeopardy. As a consequence he moderated his intake of alcohol.

The plaintiff remained on board the Melbourne until March 1965. He said that he did not feel comfortable living below decks and asked to be transferred closer to the weather decks. His next posting was to Manus Island where he was watch keeper of the powerhouse. The atmosphere of the tropical island suited him better than being confined below decks. He found the atmosphere on Manus Island “very unwinding, very relaxing”. He continued to drink more than he should, but slept well, at least in the early part of his stay, in a bunk near to a door with big louvre windows. The room did not have any doors and was very open. However, while on Manus Island he claimed to have had his first nightmare about events surrounding the sinking of the Voyager.

This occurred in the latter part of his posting to Manus Island. He described it as “very nasty”, and although he had others, it was the first nightmare that shook him most. He described the nightmares as involving him and a bunch of other men “trapped in a mess in a sinking ship and going down in very, very black water”. The evidence indicated, according to O’Keefe J, that once he had experienced such nightmares they were recurrent. O’Keefe J said: “26 … He gave a history of recurrent nightmares to Dr Holwill. Dr Holwill was a consulting psychiatrist who spent some time as a psychiatrist at the Repatriation General Hospital at Heidelberg, Victoria. He had made a particular study of veterans and, in company with a Dr Kitson, had undertaken a study to establish a formal treatment programme for veterans with Post Traumatic Stress Disorder (PTSD). The plaintiff also gave a history of nightmares to another psychiatrist, Professor McFarlane. One of these was that he was drowning in a black sea. Another was that he saw himself hanging over boom nets with the people looking up at him turning into skeletons with their flesh falling from their bones. Outside the context of litigation he told Dr Robert Black, to whom he had been referred by his General Practitioner, of dreams involving him drowning in a black sea – nightmares that Dr Black thought would probably never leave him. This is significant because in my opinion it indicates that not only had the plaintiff complained to his General Practitioner of problems that had necessitated reference for treatment, but it also suggests that nightmares may well have been discussed with his General Practitioner, quite outside the context of litigation.”

In May 1972 the plaintiff married. His wife, Vera Stankowski, who gave evidence, was a bank officer who first met the plaintiff about six years after the collision. Mrs Stankowski said that the plaintiff had been referred to a PTSD programme after which and with the benefit of anti-stress medication from his local general practitioner he had become a different person to live with having been moody prior to that time. She gave evidence of nightmares experienced by her husband. She said he would wake up with a gasp, get up, walk about and look out the window. When she would ask him what the problem was “he’d just say a nightmare and he wouldn’t say any more about it.”

O’Keefe J said: “29 Changes in the plaintiff that occurred after the collision were noted by people other than the plaintiff and his wife. Mrs Peach, who first came to know the plaintiff in 1961, knew him as a very happy, cheerful type of person who would socialise and sometimes have a drink but never a great amount. After the collision he was depressed and would just sit very quietly. She also noticed “a definite difference in him” and that he drank a lot more alcohol than he had previously. This change was observed by her from the time she first saw him after he had returned to Sydney following the collision and was on furlough. This continued up to the time she and her husband moved from suburban Adelaide to Ceduna, which is in the country. She stated: ‘His character had changed. It definitely had changed. He wasn’t the happy-go-lucky type of lad that he used to be.’ 30 The cross examination of Mrs Peach was to the effect that sailors had ‘a significant tradition’ of drinking when they came ashore and that she had seen many of them ‘pretty tipsy’. Mrs Peach said that this was not always the case, although it was true of some. The cross examination did not in any way seek to undercut her evidence about the change in the plaintiff following the sinking of the Voyager. There is no reason based on the cross examination or on my impression of her in the witness box to treat her other than as a witness of truth. I accept her evidence. 31 Another witness who spoke about the change in the plaintiff following the collision was Mr Neil Windle. He had served with the plaintiff in the Royal Australian Navy. They fraternised in the course of their work and socially and were both transferred to Melbourne at about the same time. Mr Windle was on board Melbourne at the time of the collision. He described the plaintiff as ‘outgoing, extroverted … friendly’ prior to the collision. By comparison he said that after the collision he recalled the plaintiff when he went ashore ‘getting completely drunk’. What is more his smoking increased to the extent of posing an annoyance for Mr Windle. Several complaints by Mr Windle urging the plaintiff to cut down on his smoking were to no avail. 32 Mr Windle described his observation of the plaintiff following the collision as follows: ‘There was a visible change in his character. He became moody and short tempered. In fact, he did get in trouble several times for his temper and trouble. He was a moody person and still was a drinker... His drinking had increased and I know that because when he came back drunk to get in his bunk he had to stand on my bunk to use it as a platform to get in, and he used it as a springboard so I knew every time he came back drunk. Q. How often did this occur? A. Every time he went ashore.’ None of Mr Windle’s evidence concerning the change in the plaintiff following the collision was the subject of challenge. As a consequence I am able more readily to accept such evidence and I do. 33 From the foregoing it can be seen that there was evidence from several sources confirming the change in the plaintiff following the collision. There is also evidence confirmatory of the fact that he had recurrent nightmares that had extended over a very, very long period. I am satisfied that from a time very shortly after the collision the plaintiff underwent a change. He drank to excess, whereas before he had been a very moderate drinker. He smoked excessively, whereas before he had not. He became depressed, whereas before he has been happy, friendly and outgoing. I am further satisfied that from the time he was at Manus Island he experienced nightmares that were frequent, persistent and redolent of the events surrounding the sinking of Voyager by Melbourne on 10 February 1964.”

The PTSD programme in which the plaintiff participated followed an examination, required by the Commonwealth, in October 1998 by Dr Phillips. Dr Phillips, whose report was not admitted into evidence, apparently diagnosed the plaintiff as suffering from PTSD. In about October 1999 the condition of the plaintiff was reported on by Dr Linda McCarthy, a senior staff specialist at the Repatriation General Hospital, Daw Park, a teaching hospital at Flinders University, who expressed the opinion that according to DSM IV (Diagnostic and Statistical Manual of Mental Disorders, 4th ed, text revision) criteria, the plaintiff had a diagnosis of chronic PTSD the symptoms of which had worsened in the two previous years. Dr McCarthy thought that attending the PTSD course at the hospital would aid his treatment and recommended his attendance. The plaintiff was referred to a programme at the hospital which he attended between 8 November 1999 and 15 December 1999. The course was a full time course from 9 am to 5 pm, five days a week. The plaintiff responded favourably to the course and to a prescription for anti-stress medication for his depression and for sleeping problems. Two of the drugs nominated were Arima and Diazepam. Since about 1999 and over the time of the trial, the plaintiff had gradually been feeling better. He was, as Professor McFarlane testified, in partial remission. The medical evidence

The principal medical evidence led by the plaintiff was given by Dr Holwill and Professor McFarlane and that led by the defendant by Dr Roldan and Dr Champion. At an early stage in the preparation of the case, the plaintiff’s solicitor referred him to a psychiatrist, Dr Wu. Dr Wu died before the hearing. The plaintiff saw Dr Wu in late 1995 in a motel room in Adelaide for about one hour. Dr Wu’s diagnosis of the plaintiff was not PTSD but rather a psychiatric or psychological condition described as dysthymic disorder. In Dr Wu’s opinion the trauma of the collision and subsequent experience within the Navy would have been sufficient to initiate and maintain this disorder.

O’Keefe J said: “62 The principal contest in relation to the medical issued [sic] raised by the case was between Dr Holwill and Professor McFarlane on the one hand and Drs Roldan and Champion on the other. In large part the contest depended on the interpretation of the criteria for the diagnosis of PTSD that are included in the Diagnostic and Statistical Manual for [sic] Mental Disorders, fourth edition, that is generally known as DSM-IV and their application to the plaintiff’s condition and history. The DSM-IV was published by the American Psychiatric Association and became effective on 1 October 1996. It included what is described as ICD-9-CM. The DSM-IV, as published in 1996, has been the subject of revision in 2000. The ICD-9-CM is an equivalent of DSM-IV published as part of the World Health Organisation’s volume known as ‘The International Classification of Disease’. It includes a specific section on psychiatric disorders. A revision of that document, ICD-10, has been published. However the criteria in ICD-9 and ICD-10 are not precisely the same as those in DSM-IV. It is unnecessary to detail the differences between the two sets of standards, suffice it to say that both standards are empirical, should not be regarded in the same way as a statute, but should be interpreted and applied reasonably flexibly. One matter that should be perhaps adverted to is that ICD-10 places more emphasis on the objective circumstances of the event and in this sense differs from criterion A2 in DSM-IV. PTSD involves the development of certain symptoms following exposure to an extreme traumatic stressor involving direct, personal experience. The highest rates of it, ranging from between one third and more than one half of those exposed, are to be found amongst people involved in, inter alia, military combat situations. Such situations would be apt to include the collision between Voyager and Melbourne on 10 February 1964. PTSD can occur at any age and there may be a delay of months or even years before symptoms appear. 63 DSM-IV sets out diagnostic criteria that are grouped under six headings or criteria (A to F). Each of the criteria has various subheadings and each looks to compliance with all or one or more of the indicators referred to in respect of each criterion.”

It is useful at this point to set out the relevant parts of DSM IV. Under the heading “309.81 Posttraumatic Stress Disorder” appears the following: “Diagnostic Features The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). The person’s response to the event must involve intense fear, helplessness, or horror (or in children, the response must involve disorganized or agitated behaviour) (Criterion A2). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent reexperiencing of the traumatic event (Criterion B), persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criterion C), and persistent symptoms of increased arousal (Criterion D). The full symptom picture must be present for more than 1 month (Criterion E), and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F).”

The diagnostic criteria for 309.81 are as follows: “A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (2) the person’s response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganized or agitated behaviour. B. The traumatic event is persistently reexperienced in one (or more) of the following ways: (1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed. (2) recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content. (3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific re-enactment may occur. (4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event (5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: (1) efforts to avoid thoughts, feelings, or conversations associated with the trauma (2) efforts to avoid activities, places, or people that arouse recollections of the trauma (3) inability to recall an important aspect of the trauma (4) markedly diminished interest or participation in significant activities (5) feeling of detachment or estrangement from others (6) restricted range of affect (eg, unable to have loving feelings) (7) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span). D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: (1) difficulty falling or staying asleep (2) irritability or outbursts of anger (3) difficulty concentrating (4) hypervigilance (5) exaggerated startle response. E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month. F. The disturbance causes clinical significant distress or impairment in social, occupational, or other important areas of functioning. Specify if : Acute: if duration of symptoms is less than 3 months Chronic: if duration of symptoms is 3 months or more Specify if: With Delayed Onset: if onset of symptoms is at least 6 months after the stressor.”

The trial Judge said this about Dr Holwill: “64 Dr Holwill is a consulting psychiatrist. He had held staff positions at the Royal Melbourne Hospital, been senior lecturer in psychiatry at the University of Melbourne and was later responsible for the conduct of the Affective Disorders and Lithium Clinic. In the course of his career he was transferred to the Repatriation General Hospital, Heidelberg, where he was senior consultant. In 1992 he went into private practice and in that practice has been looking after a large number of veterans. He has published a number of learned papers and, together with another specialist, he undertook a study of morbidity rates (psychological illness) amongst veterans. He was clearly a psychiatrist of the highest qualifications and experience. He was of the firm opinion that the plaintiff was suffering from PTSD that was chronic and moderately severe. He expressed the view that: ‘The development of Mr Stankowski’s chronic psychiatric condition is directly attributable to his experiences aboard HMAS Melbourne at the time of the collision with HMAS Voyager and to no other significant factors. It would be a minor contribution to his overall level of Post Traumatic Stress Disorder by his experiences whilst serving in South Vietnam.’ and ‘Mr Stankowski’s quality of life has been seriously, adversely affected by experiences at the time of the collision, as has the quality of life of his family. It is unlikely that there will be any further significant improvement in his condition with the passage of time or ongoing treatment.’ 65 In the course of his evidence Dr Holwill dealt with the phenomenon that people such as the plaintiff: ‘… typically try and deny their symptoms to themselves. They often feel ashamed of having symptoms and are very reluctant to admit to others that they have symptoms, even to medical people.’ 66 He was then asked: ‘Q. Doctor, is there any medical hypothesis or theory as to why it is that police officers or former police officers or members of the armed forces or ex members of the armed forces should engage in the sort of denial you’ve spoken of? A. Well, I mean, first of all it is a clinically observed fact that they do. The explanation probably lies in the sort of people that they are and the sort of service that they have decided to undertake, whether in the armed services or in the police force, and they typically have a belief that they should be strong, that they should serve their community or their country, that they should be brave and they should be able to tolerate these things on the basis that they are trained for it. So when they develop symptoms they often try and hide it from their colleagues or comrades fearing that they will be perceived as weak and they feel shame about the symptoms and try and deny it to themselves and see themselves as a failure.’ 67 Dr Holwill was cross examined for almost a complete day. It was an appropriate, carefully constructed, well researched cross examination, but it did not cause Dr Holwill to recant or to deflect from the opinion that he had expressed. Much of the cross examination depended on taking parts of histories given at different times to different people or included in various documents that were brought into being in a range of circumstances. In adhering to his opinion Dr Holwill relied on a history taken by him that is supported by the specific findings of fact set out in paragraph 59 [of his Honour’s judgment] as well as the more general evidence given by the plaintiff and his witnesses referred to in the text of this judgment. Furthermore, it should be remembered that s 72 of the Evidence Act 1995 , provides that the hearsay rule of exclusion does not apply to evidence of a representation about a person’s health, feelings, sensations or state of mind.” O’Keefe J said that the evidence of Dr Holwill was convincing and his Honour accepted it.

His Honour went on to say that Professor McFarlane was a mainstay in the plaintiff’s case, a person who possessed formidable qualifications and experience. His Honour said: “69 … His knowledge of PTSD is encyclopaedic. His association with the formulation of the DSM-IV was intimate. He is Professor and Head of the Department of Psychiatry at the University of Adelaide and has been so for some 13 years. He holds a doctorate in medicine and is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He holds a Diploma of Psychotherapy. He is the senior advisor to the Director General Health Service Branch on Mental Health and senior psychiatric advisor to the Australian Centre for Post Traumatic Mental Health. His various appointments and positions over the years from 1976 to the present, extend over three pages of his curriculum vitae. He has won numerous prizes, scholarships and awards and has written and had published some 150 learned papers. He is the co-author of a recent book on Treatment Planning for Trauma Survivors with PTSD (2000). In addition, he has published three other books on traumatic stress and PTSD and was a member of the DSM-IV sub-committee for the editing and compilation of that manual. He has studied a range of different traumas and their effects. One was an earthquake in China that killed 800 people. He also acted as an advisor in relation to the Kobe earthquake that killed 30,000 people. In the field of military trauma he wrote a report for the United Nations Compensation Commission about the Iraq occupation of Kuwait. Subsequently he acted as an advisor to the government of Kuwait and in the months preceding the most recent war in Iraq he wrote a report for the government about how to deal with chemical and biological attacks, because of the importance of psychological elements in such matters. Closer to home [he] is a Group Captain in the Royal Australian Air Force in the Medical Specialist Reserve. He has also been involved as the scientific advisor in relation to the study of veterans of the Gulf War. 70 In addition, Professor McFarlane sees and treats patients, particularly in the field of trauma related psychological disabilities. He sees and has seen many patients suffering from PTSD. He is a medical professional with outstanding qualifications and experience both national and international. …”

In O’Keefe J’s opinion, Professor McFarlane was a most impressive witness. His Honour said that it was no exaggeration to say that he was, in his Honour’s experience, one of the best equipped and impressive medical witnesses that he had seen. The trial Judge continued: “71 In the course of his evidence Professor McFarlane analysed each of the criteria included in DSM-IV for the diagnosis of PTSD, insofar as they related to the plaintiff. He said that certain of the criteria were self evident, some were critical and some involved clinical judgment. He expressed the opinion that criteria A1 and 2 had been met. Both of these were specified as requirements for meeting DSM-IV criteria for PTSD. He further expressed the opinion that criteria B1, 2, and 5 had also been met. Dr Roldan, for the defendant accepted that there was evidence establishing criteria B1, 2, 4 and 5. The DSM-IV requirements are that for [sic] only one of these matters needed to be met. He said that in respect of criterion C, factors 1, 2 and 5 had been met. DSM-IV required at least three of the factors under this heading to be present. In addition there was strong evidence of criterion C4. Dr Roldan agreed that criteria C2 and 4 had been established and that the history he obtained went a long way to satisfying criterion C5. Professor McFarlane testified that the plaintiff satisfied criteria D1, 2, 3 and 4. The defendant’s Dr Roldan agreed that there was evidence to satisfy criteria D2, 3 and 4. DSM-IV required the presence of only two (or more) of the factors listed under this heading. It was accepted that if the plaintiff’s symptoms commenced soon after the accident and have continued since, criterion E was met. Similarly it was not gainsaid that if the disturbance produced clinically significant distress or impairment of the kind that I have found, criterion F was met.”

Professor McFarlane was of the opinion that: ““Mr Stankowski has a post traumatic stress disorder that is in partial remission, following his involvement in the Repatriation Hospital program and the prescription of anti-depressant medication. In particular his avoidance symptoms, interpersonal withdrawal, irritability and mood have improved. Furthermore his alcohol abuse has very significantly decreased in recent times.”

O’Keefe J said: “73 Professor McFarlane was cross-examined by senior counsel of long experience and acknowledged skill in the art of cross-examination. His cross-examination extended over the course of two full days. Various possible scenarios were put to him arising out of parts of histories given by the plaintiff either to medical practitioners or taken from various documents. The delay in the emergence of nightmares was also dealt with. The plaintiff’s drinking problems and possible alternative explanations for them were put to the Professor. The plaintiff’s ability to perform his naval duties, achieve promotion and hold down a responsible job at Moomba for any years were adverted to, as were many other matters too numerous to detail in these reasons. Reference was also made to various learned papers, of which Professor McFarlane demonstrated a knowledge, even without having the papers put before him. He further demonstrated his encyclopaedic knowledge of the subject and the literature relating to it. It is fair to say that virtually nothing that could have been put to Professor McFarlane was not put to him. It was a very searching, thorough cross-examination conducted with real skill. Various matters that were the subject of the cross-examination were suggested to be inconsistent with the diagnosis arrived at by Professor McFarlane. Professor McFarlane did not agree. He adhered to his opinion and, in the course of dealing with the various matters raised he not only dealt with them convincingly but further demonstrated the depth of his knowledge and experience of PTSD and associated mental disorders.” O’Keefe J accepted the opinion of Professor McFarlane.

His Honour next referred to the evidence of Dr Fernando Roldan, a consulting clinical psychologist and neuro psychologist, who saw the plaintiff in March and June 2002 and prepared a report dated 25 April 2003 in which he detailed the history taken from the plaintiff and the tests that he conducted. In the final analysis, Dr Roldan said: “In my opinion the objective evidence available to me indicates that it is unlikely that Mr Stankowski developed a formal psychological disorder as a consequence of the accident in question. That is not to say that Mr Stankowski may not have been distressed by the events of 10.02.64. … In my opinion, the available objective evidence indicates that any psychological distress that Mr Stankowski may have experienced in relation to the accident did not result in the level, range and duration of psychological and behavioural disruption that is now claimed and if there was any such disruption that it is likely to have been very short lived. In my opinion, the evidence available to me suggests that Mr Stankowski is now engaging in a distorted and self-serving report of his history due to the potential for monetary compensation that such report carries with it.”

O’Keefe J, commenting on Dr Roldan’s opinion, said: “77 From the foregoing it can be seen that Dr Roldan characterised the plaintiff as untruthful and as having embarked on a deliberate course of deception for the purposes of obtaining monetary compensation. That conclusion in part depended on the assessment of the plaintiff and his history by Dr Roldan. It is an assessment of the plaintiff and his truthfulness with which I have already disagreed. Moreover his conclusion does not in terms negate the existence of a psychological disturbance or its causal connection with the collision. In the very passages referred to … above, Dr Roldan accepts: (i) that the plaintiff may have been distressed or upset by the events of 10 February 1964; (ii) that the plaintiff may have experienced psychological and behavioural disruption as a result of the collision; (iii) that such psychological and behavioural disruption as a result of the collision was not of the level, range and duration claimed but “ is likely to have been very short lived ” (italics added). 78 The cross examination of Dr Roldan took him through each of the criteria in DSM-IV and related them to various paragraphs of the witnesses report in which he recorded various information given to him by the plaintiff. He accepted that criteria A1 and 2 had been met. Initially he did not agree that criterion A2 had been met, but a little later conceded that, if what the plaintiff had told him in answer to specific questions directed towards such criterion were to be accepted, then criterion A2 had been met. His problem with the meeting of the criterion was that he did not accept what the plaintiff said. In this regard it should be said that the factual findings are matters for the Court, not the expert witness. In rejecting parts of the history given by the plaintiff that were not obviously absurd, I am concerned that Dr Roldan may have strayed beyond his field of expertise. The same methodology was applied to the various other criteria in cross-examination, as a result of which Dr Roldan conceded that if the history given to him by the plaintiff were correct, then each of criteria B1, B2, B4, B5, C1, C2, C4, C5, C7, D2, D3, D4, E and F were met. The difference therefore between Dr Roldan on the one hand and Dr Holwill and Professor McFarlane on the other, was that the two last mentioned specialists formed their opinions on the basis of the history they were given, whereas Dr Roldan formed his opinion largely on the basis of the rejection of such history. The essence of the histories on which Dr Holwill and Professor McFarlane formed their opinions are in accordance with the essential facts that I have found; Dr Roldan’s relevant rejections are not.”

O’Keefe J next turned to the evidence of the defendant’s second medical witness, Dr J R Champion, who was a member of the Royal Australian and New Zealand College of Psychiatrists (1976). In 1972 to 1973 he was the Registrar at the Neuropsychiatric Institute and between 1976 and 1978 was the visiting psychiatrist to the Renal Unit at Sydney Hospital. Dr Champion had extensive experience in general psychiatry and deposed to a special interest in the area of post traumatic stress disorder and other manifestations of stress related psychopathology. His Honour said: “80 Dr Champion reported that he had seen the plaintiff at his Mosman rooms on 7 March 2002. Although Dr Champion prepared six reports for the Australian Government Solicitor concerning the plaintiff, this was the only occasion that he saw the plaintiff. Dr Champion took a history from the plaintiff as to his personality and background. He noted his mien, reviewed a number of documents, referred to a number of older learned papers and expressed the view: ‘On the basis of the history he now gives as set out in his written statement it would seem likely that he may have suffered with a mild PTSD.’ However, like Dr Roldan, Dr Champion did not accept the history he was given. He said he was: ‘not convinced… that the history he now gives and that present in his written statement, in terms of his emotional reactions and the behavioural changes claimed, can be relied upon as an accurate indication of the presence of that condition.’ And as a consequence of this approach to the plaintiff’s history Dr Champion stated: ‘I do not believe that Mr Stankowski has suffered with PTSD as a result of his experiences in the Melbourne/Voyager collision. I believe that Mr Stankowski has been currently focussed upon these experiences as an explanation for some of the difficulties he has experienced in relation to personality vulnerability, alcohol consumption and anxiety/depression.’ “

O’Keefe J considered there were difficulties standing in the way of accepting this conclusion which he described as follows: “81 … The first is that it involves a rejection of the plaintiff’s history – a history that is substantially in accordance with the facts as I have found them. One example of this is the rapid onset of excessive consumption of alcohol; another is the change in his personality that came closely on the heels of the collision. A second difficulty is that a vulnerable personality may more readily be adversely affected psychologically by an event such as the collision. A third difficulty in the way of accepting the opinion proffered by Dr Champion is that the plaintiff experienced a partial remission in symptoms as a result of his attendance at the PTSD course conducted by the Commonwealth and taking the drugs that were prescribed for him. A fourth difficulty is that the methodology used by Dr Champion in eliciting the plaintiff’s history was open to criticism in that it was contrary to that utilised by every other expert called in the case, including Dr Roldan. A fifth difficulty arises out of the cross-examination of Dr Champion. In his cross examination he was taken through the histories given by the plaintiff and questioned as to whether or not they fulfilled various of the criteria. The upshot of this was that Dr Champion agreed that criteria A1, possibly A2, B4, B5, C2, C5, C6, D2, D3, D4, E and F were satisfied. Those matters of history which gave rise to this concession are supported by the findings of fact that I have made. In relation to criterion A2, Dr Champion’s concession was qualified on the basis that the material put to him went ‘some of the way’ towards the fulfilment of this criterion. He did not accept that criterion B2 had been satisfied. The view that he expressed in relation to criterion B2 had two bases. This was that he, ‘personally’ did not subscribe to the theory of symbolic transfer. The other depended on the interpretation of the criterion. 82 Whilst the concessions made by Dr Champion are valuable to the plaintiff’s case and ultimately supportive of the diagnosis of PTSD made by Dr Holwill and Professor McFarlane, they are not, perhaps, as important as they appear to have been to the parties during the course of the case. The cross-examination to elicit them was lengthy. However, as the first extract from the report of Dr Champion referred to in paragraph 80 above indicates, if the history given by the plaintiff as set out in Dr Champion’s report is accepted, then the plaintiff did suffer PTSD. Such history, as I have said, accords with the findings of fact that I have made. Furthermore the use of the adjective “mild” is not warranted. It is not in accordance with what the plaintiff experienced over many years, albeit that he is somewhat better since the PTSD course and appropriate pharmacotherapy.”

Having analysed the medical evidence in the way I have set out, O’Keefe J expressed himself satisfied that the plaintiff suffered from severe, chronic PTSD that was caused by his exposure to and involvement in the events surrounding the collision between the Melbourne and the Voyager on 10 February 1964. His Honour found that most of the effects of PTSD had been present from a time proximate to the collision and had resulted in a change of attitude to life, depression, excessive consumption of alcohol, difficulties with marital, family and other relationships and nightmares that had been recurrent since 1966. There were other less significant manifestations of PTSD referred to in the medical evidence from which the trial Judge accepted that the plaintiff had suffered. His Honour found that PTSD has had a significant adverse effect on the plaintiff’s life. Although he had improved somewhat since he attended the PTSD Clinic conducted by the Commonwealth and pharmacological intervention, he still suffered from symptoms. These included nightmares, which were unlikely ever to disappear. He would need drug therapy and psychiatric help in the future. On this aspect of the case, his Honour concluded: “84 PTSD is a psychiatric disorder. The occurrence of psychiatric disorders of the same or cognate kind as a result of wartime trauma is well known. Going back to the 1860’s the effect of traumatic incidents in producing psychiatric disturbances was well known. Studies done in relation to World War I and World l [sic] War II veterans have demonstrated the causal relationship between involvement of service personnel in traumatic events and the development of psychiatric disorders. They have been variously described in everyday speech. A common description used following World War I was ‘shell shock’, no doubt related to the trench warfare experience of troops in Europe. A common description following the warfare in the jungles in which a large part of World War II was fought was ‘troppo’. According to Professor McFarlane, they are the same thing. Studies relating to Vietnam veterans have been undertaken with a similar outcome. The World Health Organisation’s publications of the late 1940’s and the early 1960’s recognise the problem. I have no doubt that it was not only foreseeable, but likely, that some of the sailors involved in the traumatic events of 10 February 1964 would suffer psychological injury, as the plaintiff did. 85 The plaintiff is entitled to damages.”

O’Keefe J went on to consider damages which he awarded as I have set out. Appeal and cross-appeal Discharge of the jury

After the Court adjourned on Wednesday, 1 October 2003 a note was received from the jury asking the following questions: “Questions for his Honour 1/10/03: 1. Is S Stankowski an Aust citizen? 2. If S Stankowski doesn’t wear his medals because of his ‘condition’, what is his lapel badge? 3. Does S Stankowski attend RSLs and, if so, does he attend at night? Signed Jury Foreman.”

At the beginning of proceedings on Thursday, 2 October 2003 these questions were brought to the attention of the parties and debate took place about the nature and extent of directions that should be given in relation to such questions. Particular emphasis was directed towards the first question. Mr Burbidge QC, who appeared for the defendant, agreed that the proper direction to the jury in relation to question 1 was that the matter was not a relevant consideration for them and stated he had no objection to the plaintiff giving evidence which dealt with questions 2 and 3. Mr Melick SC, who appeared for the plaintiff, said the jury was entitled to ask questions at any stage of the trial. As to question 1 he stated that he would rather it be asked and answered by the plaintiff. In the result, O’Keefe J gave the following directions: “I have advised counsel that after we adjourned yesterday I received a note from your foreman and I have given copies of the note in typewritten form to counsel. As to the first question, namely is Mr Stankowski an Australian citizen, the first thing I would say to you is that is entirely irrelevant. In this country under our rule of law all persons who are in Australia are entitled to be treated in precisely the same way in relation to a claim such as the present. It is not a passport to consideration by a jury of a claim made by a plaintiff that that plaintiff is an Australian citizen. To take a contrary view may suggest bias, it may suggest prejudice, and neither of those factors has anything to do with your adjudication in this case. Similarly, sympathy has nothing to do with your adjudication in this case. The role that you are performing as a jury is as judges of the fact and as judges of the fact you are required to be impartial and free from influences such as prejudice or favour; that is, adverse or in favour of a party, either party. Neutrality in judgment is of the essence. So the answer to the first question is simply not relevant. Secondly, the answer on the evidence to date is we don’t know and absent there being evidence on a matter it is not a matter for speculation. The answer to the third question, does Mr Stankowski attend RSLs and, if so, does he attend at night, is as follows. First, there is evidence about his joining the RSL and about his attendance or lack of attendance at the RSL. That’s the evidence and it is on the basis of that that you must judge the matter. To date no-one has asked Mr Stankowski whether he goes at night or not, and in cases such as we are engaged in at the present time it is the parties who present the case and the parties who test the case. The court is, in essence, in the hands of the parties. They control the litigation and so what evidence they adduce or don’t adduce is a matter for them and their professional judgment, but there isn’t any evidence about night time at the moment. Gentlemen, is there anything further you wish me to add to those answers? MELICK: No, your Honour. HIS HONOUR: Mr Burbidge, anything you wish me to add to that? BURBIDGE: No, your Honour.”

The plaintiff was re-sworn and gave the following evidence: Q. Mr Stankowksi, are you an Australian citizen? A. Yes, sir. Q. What is the lapel badge you are wearing? A. Blood donors. Q. Do you attend any RSL clubs at night? A. No, sir. MELICK: Thank you, your Honour. HIS HONOUR: Do you have anything arising out of that? BURBIDGE: No, thank you, your Honour. HIS HONOUR: You may stand down, Mr Stankowski.”

The evidence continued after which the hearing was adjourned until Tuesday, 7 October 2003. On 7 October Mr Melick said he had instructions to ask for a discharge of the jury on the basis that the plaintiff was concerned about the nature of the question that was asked about his citizenship and this had caused him an apprehension of bias on the part of at least one member of the jury, unknown. He considered members of the jury might be biased against him because of his background and added as a rider to that independently that the question indicated that at least one member of the jury was considering matters irrelevant to the matters before them. Counsel made no complaint about the direction O’Keefe J had given to the jury on 2 October 2003.

Counsel for the defendant opposed the application to discharge the jury. In particular it was submitted that the matter could be dealt with by an appropriate direction. The defendant had no objection to the trial Judge so dealing with it, preferably in the course of summing up.

As already stated, on 7 October 2003 O’Keefe J gave judgment on the application for the jury to be discharged. His Honour said that the plaintiff was born in Germany just before the end of World War II and came to Australia when he was five years old. “His appearance could be viewed as Teutonic, and his manner is certainly such as could be considered somewhat abrupt, and such as might fit within a stereotype that coincided with his origin.” His Honour made no reference to evidence by the plaintiff given at the beginning of Mr Burbidge’s cross-examination on 29 September 2003 as follows: “Q. Mr Stankowski, could I start with some understanding of your move to Australia. You told us that you were born in Germany in 1945? A. That’s correct, sir. Q. Which of course was, as you would know, the last year of the Second World War? HIS HONOUR: It was less than a month before the end of the war in Europe. BURBIDGE: I didn’t look at the actual month but, with respect, yes. HIS HONOUR: 20 April, I thought he said. The war in Europe ended 15 May 1945 as I recall. BURBIDGE: Q. The question I ask you is this. You spent your early years, did you, in Germany? A. The first five years, yes, sir. Q. Were you a German speaking family? A. No, sir. Q. What language did you speak at home? A. Polish.”

For the reasons given in his judgment of 7 October 2003, O’Keefe J discharged the jury.

Webb v The Queen (1994) 181 CLR 41 concerned a jury trial of a man and woman charged with the murder of another man with whom they had been drinking. On the morning of the day the judge commenced his summing up, one of the jurors gave a bunch of flowers to the deceased’s fiancée’s mother at the courthouse with the request that it be given to the deceased’s mother. The juror was identified and apologised for her conduct. Counsel for each of the accused applied for the jury to be discharged. The trial judge asked the juror for an explanation of her conduct. She told the trial judge “I didn’t consider it of importance, I’m afraid I am an impulsive person.” (at 53). The trial judge accepted that the contact between the juror and the mother of the deceased’s fiancée was spontaneous. In dismissing the application his Honour stressed to the jury the need for them to have regard only to the evidence, which they were to consider in a dispassionate manner, putting aside all feelings of sympathy or emotion. By contrast, in the present case, O’Keefe J did not enquire from the foreman why the jury sought an answer to the first question. In Webb both accused were convicted. The convictions were upheld in the South Australian Court of Criminal Appeal.

Both accused were granted special leave to appeal to the High Court on the ground that the learned trial Judge ought to have discharged the jury. In their joint judgment, Mason CJ and McHugh J said at 46-47: “In our opinion, the test that his Honour should have applied was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror. When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. … Although the role of the juror is not the same as that of the judge, a commissioner or a member of a quasi-judicial tribunal, we do not think that the difference between the role of the juror and the role of those persons warrants any different test for alleged bias.”

At 53 their Honours said: “It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury, is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.”

At 53-4 their Honours pointed out that the decision of the judge in such a situation is a discretionary judgment in the sense that it involves a value judgment: “Where no error of principle is involved, an appellate court is naturally slow to substitute its opinion for the trial judge’s opinion. The law reports contain many cases where the decision of the trial judge to continue a trial has been upheld, notwithstanding irregular incidents, … including conversations or contact between a juror and outsiders before deliberations have commenced.”

At 55 their Honours said: “The incident indicated that the juror felt strongly for the plight of the mother. Her sympathy, manifested as it was by disobedience of the judge’s warning, raised a serious question as to her ability to consider the evidence dispassionately and impartially.” Their Honours observed that a finding that the incident gave rise to a reasonable apprehension of bias was not the end of the matter. “The fair minded and informed observer would also consider the effect of the judge’s warning on the juror and the judge’s assessment of the character of the juror.” Their Honours held that this ground of appeal failed.

Brennan J, who dissented, thought that the suspicion of unfairness was not wiped away by what happened or was said after the incident (page 60). At 68 Deane J, who also dissented on this ground of appeal, pointed out that although it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice, the test is an objective one and the standard to be observed in its application is that of a hypothetical fair minded and informed lay observer. At 79 Deane J expressed his conclusion as unavoidable that a fair minded lay observer with knowledge of the material objective facts would be most likely to entertain a reasonable apprehension that the juror concerned would not approach the task of the determination of guilt or innocence either objectively or with an impartial and unprejudiced mind.

Toohey J at 88 said that when the correct test was applied, the charge of apparent bias in the case of the juror could not be sustained: “There can be no reasonable apprehension of her actions being construed as bias against the appellants or either of them as distinct from sympathy for the mother of the deceased. While that sympathy was manifested in an unusual way, it remained to the fair minded observer a case of sympathy. Any dangers associated with it were readily capable of being avoided by the express directions the trial judge gave to the jury. And the juror’s own reaction, her apology and expression of concern, points to the likelihood that she, as well as the other jurors, would observe those directions.” Thus by majority, the appeals were dismissed.

In support of its appeal against the discharge of the jury the appellant referred to the Full Federal Court in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 90 at [15]. In a joint judgment the Full Court (Weinberg, Stone and Jacobson JJ) said: “15 In our view this is a thinly disguised attempt to have this Court take issue with the Tribunal’s assessment of the merits of the appellant’s claim. The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even were the Tribunal to disbelieve every element of the appellant’s claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134. Such allegations must not be lightly made; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J. They also must be firmly and distinctly made and clearly proven; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J. In this case the Tribunal carefully examined the claims made by the appellant and explained why it did not accept those claims. Whether this Court or the primary judge would have come to the same conclusion is not relevant.”

In Jia Legeng the majority of the Full Federal Court had held that the Minister for Immigration and Multicultural Affairs had made a decision which was induced or affected by actual bias, being the ground of review specified in s476(1)(f) of the Migration Act 1958. However imputed bias must be “firmly established”. In the language of Kirby J in Jia Legeng at 549: “It is not enough that the reasonable bystander has a vague sense of unease or disquiet.”

In this case each of the questions raised in the note to the trial Judge were answered. It was agreed that the only question likely to give rise to an apprehension of bias was the first. But at most that question could be interpreted as suggesting that whether or not the plaintiff was an Australian citizen was a relevant concern to the jury. O’Keefe J had given the correct direction, namely, that the question was irrelevant. The jury had been told by the plaintiff that he was an Australian citizen. With due respect, and bearing in mind the trial Judge’s direction to the jury, I cannot accept that a fair minded and informed member of the public might, in the circumstances, have had a reasonable apprehension that the jury might not discharge its task impartially. There was no reason to assume that the jury would not have abided by the trial Judge’s direction or to assume that the fair minded and informed member of the public might have some doubt about that. While O’Keefe J’s decision was one made in the exercise of his discretion, in my opinion that discretion miscarried and the jury should not have been discharged. However, the defendant does not argue that having discharged the jury, O’Keefe J had no power to order that the proceedings continue before him sitting alone. Procedural unfairness

The grounds in support of the contention that he should not have ordered that the trial continue before himself alone were two; first, that the defendant was prejudiced because a substantial part of the evidence was given while the jury was hearing the case which meant that the witnesses were handled in a way differently from that which would have obtained if the judge had been sitting alone throughout the trial; secondly, that if this Court did not order a new trial it would be encouraging “forum shopping”. I should say immediately that in the present case there is nothing to support the view that the plaintiff was engaging in forum shopping which is, as I understand it in this context, meant to suggest that as the trial progressed the plaintiff or his advisers took the view that the plaintiff would be more likely to succeed before the judge sitting alone than before the jury. No doubt, once the plaintiff or his advisers apprehended bias, they realised that if the point were not taken immediately it would be lost and not open to be raised on appeal if, ultimately, the jury found a verdict for the defendant.

On this ground the defendant seeks an order that O’Keefe J’s verdict be set aside and that there be a new trial. Part 51 r23(1) of the Supreme Court Rules provides that the Court of Appeal shall not order a new trial “unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned” by the matter complained of, in the ground relied upon. In the present case senior counsel for the defendant asked for another trial before a jury or another trial by judge alone. Counsel conceded it was open to the plaintiff to apply to dispense with the jury. Counsel recognised that “in a sense” the defendant had had a trial, a long trial, but it was submitted a trial different from the trial to which it was entitled.

Mr Burbidge put these matters. Evidence, particularly a significant part of the plaintiff’s and of his lay witnesses, was led in front of the jury. Counsel submitted there are quite different techniques associated with a jury to that before a judge. For example, it was said: “What we ultimately feared at that time [and] were ultimately confronted with, [was] the proposition ‘you didn’t ask the plaintiff that’ or ‘you didn’t ask the plaintiff something else’. That is so. They are questions which you might grip if you know somebody is going to write a judgment. Where a jury comes out and there is no capacity to look behind the reasons, the simple techniques of cross-examination differ totally.” However, when ordering that the trial should continue before O’Keefe J sitting alone, his Honour gave leave to the defendant to recall for further cross-examination any witness already called whose cross-examination the defendant reasonably claimed would have been different had that witness been cross-examined other than before the jury. In fact the plaintiff was recalled.

The second matter relied upon was that there was involved an element of forum shopping. Counsel submitted that: “It was open to conclude or at least suspect that the plaintiff had formed the view that he was not travelling too well with the jury and that remarks which had been made by his Honour may have encouraged him to think that he may have a better chance before his Honour. All that is plainly speculative, we accept that.” The plaintiff’s application was conditioned upon the trial proceeding before O’Keefe J with no jury.

In my opinion, there is no substance in either of these propositions. It is always open to counsel to put to a jury that particular matters have not been put to the plaintiff or a witness in cross-examination and to rely upon that failure in the same way that it would be relied upon in a hearing before a judge alone. In the second place, for reasons I have already given, there was not any ground for suggesting that in making the application the plaintiff was forum shopping. No substantial wrong or miscarriage of justice was occasioned by the discharge of the jury and the continuance of the trial before O’Keefe J. This ground of appeal fails. Findings at trial

O’Keefe J said [34] that he was conscious of the several and protracted attacks that were made on the plaintiff’s credit. This Court has been provided with the parties’ written submissions at trial. The defendant submitted at trial that the plaintiff had failed to establish the factual bases upon which the diagnosis of Dr Holwill and Professor McFarlane were based. It was said that the histories upon which the plaintiff’s two medical witnesses founded their respective opinions were significantly different from the evidence of the plaintiff. Further, the defendant submitted that the plaintiff’s account of symptoms and vicissitudes after the collision was not to be accepted. No real attempt had been made to ensure that the plaintiff’s doctors expressed their opinions on the basis of the plaintiff’s history as that emerged in evidence. O’Keefe J expressly referred to those parts of the defendant’s submissions dealing with the plaintiff’s credit (para 5) and dealing with his nightmares, their content and frequency (para 6). On appeal the defendant complained that the trial Judge had failed to deal with many of the defendant’s contentions at trial.

It is useful immediately to note by reference to the diagnostic criteria set out above that the plaintiff had been exposed to a traumatic event immediately after the collision which satisfied A(1) of DSM-IV. He had experienced, witnessed or been confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others. The defendant did not suggest otherwise. There was argument about A(2) and whether the plaintiff’s response involved intense fear, helplessness or horror. There was also argument about B(2) and whether the traumatic event was persistently re-experienced in one or more of the ways described, one of which was “recurrent distressing dreams of the event”. Thus, a good deal of attention was given to the question whether, and if so when, the plaintiff had experienced nightmares and the content of those nightmares.

The plaintiff gave evidence in chief about his activities while serving on board the Melbourne after the vessel returned to Sydney and about drinking heavily on shore leave. He remained on board the Melbourne until March 1965. He requested to be transferred closer to the weather decks. He also requested to be posted to remote areas and was sent to Manus Island. He described his sleeping conditions in Manus Island and said that he slept alright most of the time but not in the latter part. He gave this evidence: “Q. Did anything happen in the latter part? A. Yes, sir, I had a very nasty nightmare. Q. Did you have one or more nightmare? A. I had more but that was the one I recall that shook me the most. Q. Can you describe this nightmare to us? A. Yes, sir. There was me and a bunch of other blokes trapped in a mess in a sinking ship and going down in very, very black water.”

O’Keefe J found that the plaintiff first approached his solicitor, Mr Taylor, in October 1995. He did so after seeing an advertisement which was published in the “Advertiser” and “Courier Mail” on 16 September 1995 and addressed, amongst others, to the crewmen of the Voyager inviting them, should they wish to make a claim for compensation or seek advice concerning the matter, to telephone or write to James Taylor & Co. The plaintiff sent a completed questionnaire to the solicitors which the solicitors received on 27 October 1995. In a paragraph numbered 15 which asked the plaintiff to describe in his own words the physical and psychiatric injury suffered due to the collision “(eg psychiatric injuries; anxiety, neurosis, depression, etc)”: he wrote: “ RESTLESSNESS, SLEEP PROBLEMS, NIGHTMARES, DRINK PROBLEM ”

In his evidence in chief the plaintiff was asked if he had any nightmares after leaving Manus Island to which he replied: “Yes sir. Manus Island was when I first noticed them but I’ve had them periodically ever since.”

In one month he said that he might have two or three bad ones, then another two or three months might go past and there was nothing. Asked to describe the nightmares and state whether they were consistent or different the plaintiff said: “They are all a little bit different but they all end up virtually the same. They start off, I am back in the navy, I see all different faces, different people that I’ve served in different ships, they all seem conglomerated on the one ship. Somewhere along the line everything goes black and we are all drowning and screaming and carrying on.”

The plaintiff swore an affidavit on 25 March 1999 to be used in support of his application for an extension of time within which to commence proceedings. This affidavit went into evidence (S-6) and was part of the material made available to Professor McFarlane. In that affidavit the plaintiff referred to having nightmares about drowning in the pitch black sea, where there were no lights, while still on the Melbourne after it came out of dry dock after the collision, and those nightmares continuing “to this day”. He said that during his employment at Moomba he continued to have bad experiences with drink as the nightmares continued. Dr Wu made no reference to a history of nightmares in his report of 1 February 1996. His diagnosis was dysthymic disorder. The doctor said there was no clear evidence for continued post traumatic distress disorder, adjustment disorder or major depressive disorder.

The first medical witness called in the plaintiff’s case was Dr Holwill who had seen the plaintiff on 29 January 2003. Dr Holwill related orally the history the plaintiff had given him. Before preparing his report Dr Holwill had had access to other material including the report of Dr Wu. Of some importance in the plaintiff’s history of what occurred on the Melbourne on the night of the collision was his statement to Dr Holwill that he scrambled down a net to assist survivors up the nets on the side of the Melbourne. Dr Holwill also said that the plaintiff told him that in 1965 he was stationed at Manus Island and there he began having nightmares of the collision. “Following the collision his sleep became highly disturbed unless he was drunk. He told me he developed initial and middle insomnia with recurrent nightmares of the collision as described above. The nightmares continue but occur now episodically. They usually occur around Anzac Day and around the anniversary of the collision. Mr Stankowski went on to explain that he might have no nightmares for two to three months and then the nightmares will occur almost every night for up to a month.”

Dr Holwill said: “Mr Stankowski presents with a history of developing chronic moderately severe post traumatic stress disorder with associated moderately severe depression and moderately severe substance abuse, alcohol, as a result of his experience on board HMAS Melbourne at the time of the collision with HMAS Voyager.”

Asked for some explanation, the doctor said: “ ‘Chronic’ in the sense that the symptoms have been persisting ever since the event, and ‘moderately severe’ in the sense that they cause significant symptoms of sufficient severity to have a negative impact on his quality of life, to be of sufficient severity to warrant treatment, but not to totally incapacitate him or to require hospitalisation.”

Later, Dr Holwill said that development of Mr Stankowski’s chronic psychiatric conditions was directly attributable to his experiences aboard the Melbourne at the time of the collision with Voyager and to no other significant factors. A little later in his evidence in chief, the following interchange took place: “Q. Exhibit 2 being the questionnaire which Mr Stankowski filled out in Dr Wu’s office, ladies and gentlemen. Doctor, what are you able to say about insight, that people who are suffering from such conditions as you have diagnosed may have into their own condition? A. Insight is usually very limited. It is particularly so amongst service personnel and people such as police officers. These are people who typically try and deny their symptoms to themselves. They often feel ashamed of having symptoms and are very reluctant to admit to others that they have symptoms, even to medical people. Q. If you look at the last page of that document, I think it is the last page, is there anything there about insight or otherwise? A. Well, yes, that’s typical of someone with minimal insight. He’s described the symptoms and then goes on to say, ‘I hope I don’t have a problem’, and that’s typical denial of the fact that there are significant problems clearly present.”

In the questionnaire to which Dr Holwill was referred were the following questions with comments printed by the plaintiff, which I have italicised: 1. YOUR FEELINGS (EG: I feel sad more than I used to/I get angry more often). I STARTED TO DRINK HEAVILY AND DID NOT CARE VERY MUCH TO THE EXTENT I WAS BUSTED BACK TO 2ND CLASS FOR CONDUCT . 2. YOUR BEHAVIOUR (EG: My sleep is disturbed/I tend to be a perfectionist). I LEARNT TO SLEEP VERY LIGHTLY AND ANY SLIGHT NOISE OUT OF THE ORDINARY I WOULD WAKE UP AND WANDER AROUND MAKING SURE EVERYTHING WAS OK. 3. YOUR THOUGHTS (EG: I can’t trust anybody anymore/I worry a lot more than usual). I AM NOT SO TRUSTING OF PEOPLE ANYMORE. 4. YOUR WORKING LIFE (EG: I can’t seem to keep an interest in my work). MADE ME RESTLESS. 5. YOUR FAMILY & SOCIAL LIFE (EG: I don’t like to be alone at all). I LIKE THE COMPANY OF MY WIFE BUT DO NOT TRUST PEOPLE TILL I GET TO KNOW THEM WELL – EVEN THEN I NOW TEND TO BE RESERVED 6. THE USE OF DRUGS AND ALCOHOL (EG: I use alcohol to make me feel better). FOR A PERIOD OF TIME AFTER THE ACCIDENT I DRANK EXCESSIVELY BUT ONE DAY I WAS GIVEN A CHOICE ‘MY JOB & FAMILY OR THE BOTTLE’. PLEASE DESCRIBE (IF ANY) LONG TERM PSYCHOLOGICAL AND MEDICAL PROBLEMS: I DON’T KNOW IF I HAVE ANY, PROBLEMS, I HOPE NOT, I DON’T KNOW HOW TO LOOK FOR THE[M] OR EVEN RECOGNISE THEM IF I DID HAVE THEM. ”

Under cross-examination Dr Holwill agreed that nightmares and daily intrusive thoughts were characteristic features of PTSD. Referred to DSM IV the doctor accepted that the definition contained therein needed to be met before a diagnosis of PTSD could be made. Dr Holwill said that the plaintiff after the collision was at a point of time in a life threatening situation. “He was fearful that the Melbourne would sink”. The cross-examination proceeded: “Q. Fearful that the Melbourne would sink? A. He told me that when at one stage when he saw the shoring up party taking heavy timbers through. He thought they were in a desperate situation. He also saw people that he would identify with dying. Q. Saw them dying? A. Dying or at risk of dying in the sense that he saw them in the water. He was helping them up the scrambling nets. Q. If they are scrambling up the nets they are not in danger of dying at that stage, are they? A. Well, I’m not quite sure what you are saying. Are you saying that is not distressing? Q. I am not saying it is not distressing, of course it is distressing. What we are talking about is meeting a criteria? A. He has seen people at risk. Q At risk of, what? A. Of death. Q. People coming up nets. They have been rescued, haven’t they? A. I think seeing people covered in oil in cold water at night is seeing people at risk of death.”

A little later this interchange took place in cross-examination: “Q. By all means look at your report if it is helpful, I wonder you could just go to that part of the plaintiff’s description which you felt enabled the fulfilling of that particular subcriterion [A2]. A. Yes, on page 2, paragraph 3: ‘Mr Stankowski told me he felt shocked or numb. He has a persistent concern that HMAS Melbourne might sink. He became particularly alarmed when he saw men carrying large amounts of heavy shoring material to the bow of HMAS Melbourne. He told me that everyone on the crew was very solemn. At the conclusion of the rescue of the survivors he was unable to sleep.’ Then in the next paragraph: ‘When HMAS Melbourne returned to Sydney Mr Stankowski told me he was very anxious and also relieved that the ship did not sink. When he left the ship he was disbelieving and staggered by the size of the hole in the bow. He stated ‘When I saw it it made me shake’.’ Q. And that, you believe, fits this criterion of intense fear, helplessness or horror as a reaction to the event, a life threatening event? A. I think it is a very good example using that criteria.”

Dr Holwill reiterated later in cross-examination that the plaintiff mentioned “seeing the shoring up party and being fearful that the Melbourne would sink.” Dr Holwill also said that if somebody saw half the Voyager and realised that is what it was, then obviously realised there had been a major collision, he thought that alone would be shocking enough.

Dr Holwill gave this evidence in cross-examination: “Q. … Would you assume that the plaintiff when responding to a solicitor’s enquiries recorded interruption of his sleep and nightmares in 1995 and that the first assertion of the existence of either of the two events to which you’ve directed attention occurred – to a medical person of any kind, was respectively in 1998 and 1999? A. No, that wouldn’t cause me concern, it wouldn’t surprise me. It is typical when assessing these people that they have never told anyone about their symptoms, including their wives. Q. It would seem that he told the solicitor about it in 1995 during the course of some interview with the solicitor, and it would seem, of course, that he had been to the PTSD course of which we spoke earlier? A. Yes. Q. Would not those circumstances raise in your mind the possibility that the plaintiff was, whether consciously or unconsciously, or in response to other pressures, even, asserting these matters in support of a compensation attempt? A. Only in the sense that he is perhaps being more open about the experiences he is having. It is not uncommon, in fact it is quite typical as I just said, for these people never to talk about their symptoms to anyone. Q. Now, the criteria in each case relate to recollections or dreams of the event; correct, namely the traumatic event? A. Yes. Q. Did you ascertain the content of these nightmares? A. I don’t have my notes available. My recollection is that the nightmares were of various themes, some of which were related to the experience at sea and again that is typical in post traumatic stress disorder and this is one of the areas that DSM IV R has criticised [sic]. It is relatively uncommon to have someone dream specifically of the incident itself. It is much more common that they have elements of that mixed up with other things, for example combat soldiers dreaming of their children being on patrol with them.”

Later in his evidence when questioned about the importance of weighing up the question of whether the plaintiff was or was not compensation driven to compare what he, the doctor, was told and what the plaintiff had said to Dr Wu, Dr Holwill gave this evidence: “Q. And it didn’t bear a great deal of relationship to what the plaintiff was telling you this year, did it? A. That’s right and there were a number of symptoms absent in Dr Wu’s reports and that is why I went back and carefully got a historical timeline on them. The other major factor which I think is being overlooked in this discussion is that he had had treatment and participated in the PTSD program and he made it clear to me that following that he found it a lot easier to talk about his experiences and symptoms, whereas in the past he found it very difficult.”

Towards the end of Dr Holwill’s cross-examination, Mr Burbidge put a question which the trial Judge initially rejected but allowed when counsel for the plaintiff consented to its being asked: “Q. I will ask it again, Doctor, in I hope much the same terms but perhaps less argumentatively. Would you accept that it is impossible to imagine or believe the plaintiff has had daily intrusive thoughts of the collision and the repetitive nightmare which he describes over the course of the 60s, 70s, 80s and into the 90s without that matter ever having been mentioned to any of his regular medical practitioners? A. Well, I would tell you that not only is it possible it is highly likely. The reality is that many of these type of people that I assess have had symptoms for 30-odd years from the Vietnam War and have never mentioned a thing to the general practitioners and when I write back to the general practitioners they are astounded by the symptomatology.”

Mr Burbidge objected to the tender of Professor McFarlane’s report of 6 March 2003 relying upon the decision of this Court in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and particularly paras 85 and 86 in the judgment of Heydon JA, as his Honour then was. Professor McFarlane’s report contained the observation that at the solicitor’s request he saw the plaintiff on 6 March 2002 and interviewed him for one and a half hours. At the time of writing the report, Professor McFarlane had read the plaintiff’s affidavit of 23 (sic) March 1999 (part of the plaintiff’s affidavit of 25 March 1999 became exhibit 3 but later the whole affidavit was admitted as exhibit S-6) and the report of Dr Wu of 1 February 1996. Professor McFarlane said: “Because of the limitations of time I was unable to take a history of the actual collision of the HMAS Melbourne/Voyager and Mr Stankowski’s personal experience. Similarly, I was unable to ask him about his family psychiatric history or his personal history. I have read of this information in his attached record.”

Professor McFarlane said that he took a history from the plaintiff when he saw him on 6 March 2002 and again on 4 June 2003. The histories were reflected in his handwritten notes. With the report of 6 March 2002 Mr Melick tendered the notes. The notes were admitted as a recording of what Professor McFarlane was told by the plaintiff on those dates; compare s72 of the Evidence Act 1995. In addition, Mr Melick tendered reports of 1 September 2003, 29 September 2003, 2 October 2003 and 3 October 2003. After argument these additional four reports were admitted. Professor McFarlane also gave oral evidence.

Professor McFarlane described PTSD as a psychiatric disorder which is observed in people who have experienced a range of extremely traumatic events. The syndrome that emerges is characterised essentially by a traumatic memory structure in many regards different to other memories because it is unusually vivid and very easily re-evoked; secondly, the memories are obviously highly distressing so that people try and limit that distress by developing a variety of strategies to lessen their reactivity or their anxiety in response to those memories or avoid the range of triggers and thirdly, people become quite emotionally shutdown because obviously any emotion can trigger their distress. They tend to become somewhat closed off and unreactive to other emotions. He explained the history of DSM and his part in the evolution of diagnostic criteria and particularly the revised text DSM IV. In his opinion the critical criterion was A(1). It is obviously necessary to look very carefully at A(2) but Professor McFarlane thought that clinical judgment comes into play much more in its application than in the A(1) criterion.

Professor McFarlane said that the plaintiff told him that he heard the pipe and there was a thump, the lights dimmed and there was also the call of “stand by for collision stations”. Professor McFarlane continued: “He bolted up to his mess, got into his overalls and sandals, and then he ran to 3 deck where he saw the bow of the Voyager go past, although he said that at the time he believed that it was they had grazed the Voyager. He said that he became the chief stoker’s runner. He said it wasn’t until later that he had – he was aware that they had actually hit the Voyager. He heard the pipe to man the cutters and the boats. He saw the chippies, who are the shipwrights, running forward in the ship with timbers. Q. Did he tell you what he was thinking or feeling at the time? A. He described how his personal feeling was one of controlled panic. He thought the ship might be sinking and again, using clinical judgment, it would be my presumption, if you thought the ship was sinking you might have a degree of fear.”

A little further on in chief Professor McFarlane gave this evidence: “SANT: Q. What was your opinion in terms of criteria A whether Mr Stankowski met that criteria first? A. First of all the Melbourne/Voyager disaster is precisely the type of event that 1A has in mind and, secondly, that I believe that he described sufficient of his emotional response to believe that he did satisfy the A2 criterion. Q. Right. Would it have changed your opinion if he hadn’t described A2 criteria? A. Well, one of the things that DSM IV discusses, in the initial sections, is the importance of clinical judgment, and also the issue that people can satisfy the diagnosis even though they might not actually satisfy all the diagnostic criteria. Again, emphasising the issue of common sense and clinical judgment. If he hadn’t satisfied the A2 criterion (a) given the duration of time since that event, and secondly, given his factual involvement in it, it wouldn’t have stopped me from making the diagnosis. I mean, I think another issue which I think needs to be taken into account here is that people’s capacity to describe their effective reactions to these events is often quite limited. I mean, in fact Shakespeare in Macbeth states the issue when Macduff said ‘Oh, horror, horror, horror. Tongue nor heart can conceive nor name thee’. In fact, we have been involved in a variety of neuro-imaging research which demonstrates that Brokers areas, which is the part of the brain which is involved in expressive speech, tends to be underactive in these people, and there are many demonstrated accounts the way [sic] people struggle to find words to describe their reactions to these sorts of experiences, so again, that is another body of knowledge that I would have taken into account so I had no doubt that this man satisfied the A criteria.”

Dealing with criteria B, Professor McFarlane said: “Firstly, he described the content of his nightmares. In that report he described how he had gone down the boom nets and there were people there with fractured arms and limbs. He went halfway down and helped them out. He said in the dream he is hanging over the boom nets and people looking up at me and in the dream they all went to living skeletons and the flesh falling off. Now, clearly, that is a distressing dream of the event, and he later described where that was a recurrent matter.”

Professor McFarlane’s diagnosis after seeing the plaintiff on 6 March 2002 was that he had post traumatic stress disorder but was in partial remission. He explained this in his evidence. A graph drawn by the plaintiff with the assistance of Professor McFarlane indicated that his alcohol difficulties were progressively increasing until the mid-1980s but as thereafter his alcohol consumption decreased his post traumatic symptoms increased. Accordingly one could see the inverse relationship between his alcohol abuse and his post traumatic stress disorder symptoms. Put another way, the hypothesis of self medication appeared to operate. People drink in response to their symptoms and that appeared to have some beneficial effect on the severity of those symptoms.

In the course of his evidence, Professor McFarlane made the point, by reference to DSM IV in its totality, that the specific diagnostic criteria included in it are meant to serve as guidelines to be informed by clinical judgment and not meant to be used in a cook book fashion. For example, the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting full criteria for the diagnosis as long as the symptoms that are present are persistent and severe. On the other hand, lack of familiarity with DSM IV or excessively flexible or idiosyncratic application of DSM IV criteria or conventions, substantially reduces its utility as a common language for communication.

Professor McFarlane was cross-examined about his notes of the history he obtained from the plaintiff. He described his note taking practice and agreed that if something was not in his notes he did not take it into account. He noted down the things he saw as clinically significant. Professor McFarlane agreed that he was heavily dependent upon the accuracy of the plaintiff’s assertions and that it was necessary to keep firmly in mind the possibility that the patient was deliberately exaggerating or lying for a monetary benefit. Alternatively, their recollection might have become shaped by influences so that they genuinely thought something to be so when in fact it was untrue. It was put to Professor McFarlane that he had relied upon the opinion of Dr Phillips that the plaintiff had PTSD without knowing what history Dr Phillips had taken. Professor McFarlane denied this and said that his diagnosis was based upon the history that he had obtained. He was interested in Dr Phillips’ opinion because it was given before the plaintiff had undertaken the PTSD course. Professor McFarlane was cross-examined on the absence from the history given to Dr Wu of nightmares and any suggestion by the plaintiff that he went half way down the nets to assist. In the course of that cross-examination, O’Keefe J asked Professor McFarlane: “Q. What about a realisation by a person that a naval vessel had been cut in two; one part was missing, presumed sunk, and the other part subsequently sunk, what about that? A. That would satisfy A1.”

Central to the defendant’s appeal was the submission that O’Keefe J’s decision was vitiated by a procedural unfairness. Mr Burbidge relied upon the well-recognised judicial duty “to consider the case put” by a party; Re Bank Employees Union; ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 519. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 321 Gaudron, Gummow and Hayne JJ said: “[63] It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a Court of Appeal from concluding that, in light of other evidence, the primary judge had too fragile a basis to support a finding that a witness was unreliable. The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine number 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provide significant support to the allegations made by Mrs Page. [64] As Kirby J and Callinan J point out in their reasons for judgment, these were matters to which weight was not given either by the trial judge or the Court of Appeal. The substance of the matter is that there has not yet been a determination of the SRA’s case upon a consideration of the real strength of the body of evidence it presented. There must be a new trial at which this consideration will be undertaken.”

As O’Keefe J said [34] he was conscious of the several and protracted attacks that were made on the plaintiff’s credit and referred to sections in the written submissions filed on the defendant’s behalf that dealt with the plaintiff’s credit and with his nightmares, their content and frequency. The trial Judge said: “35 The defendant submitted that the plaintiff’s account as given in the witness box was inherently unreliable and should not be accepted. It further submitted that his evidence did not accord with the facts, was grossly inconsistent and that such inconsistency was amply established objectively. The defendant went so far as to submit that his account was, at least to an extent, a conscious exaggeration or deliberate falsehood or the product of suggestion and education. 36 The matters relied on in the relevant section of the written submissions in support of the submissions set out in the foregoing paragraph are: (i) the plaintiff’s account of the circumstances in which he saw an advertisement by a solicitor by the name of Taylor seeking to have persons who had been on either of the vessels involved in the collision contact him, with a view to possible legal action being taken; (ii) the plaintiff exaggerated in an affidavit sworn in March 1999; (iii) the extent to which the plaintiff’s drinking habits changed after the collision; (iv) the absence of any assertion of recurrent nightmares between 1966 and 1995.”

O’Keefe J dealt separately with each of these headings. Under the second, his Honour said: “41 The second matter relied on by the defendant namely, that the plaintiff exaggerated in an affidavit sworn in March 1999, in support of an application for an extension of time within which to commence proceedings related principally on [scil to] the use of the word ‘panic’ that is to be found in such affidavit. At the outset of the cross examination the plaintiff was asked if there was anything that he would like to draw attention to as inaccurate. It was the plaintiff who drew attention to the word ‘panic’, saying ‘I would today amend it to very, very hurriedly’ in relation to his manner of movement. The same word occurred in another context, namely in relation to what had happened. The plaintiff indicated that someone said the ship ‘had hit a plane, but there was still panic and uncertainty’. This clearly relates to the general atmosphere at the time, rather than to the response of the plaintiff. However, engrafted on to that statement was a question: ‘You weren’t panicked at any time were you?’ To which the plaintiff replied: ‘Very, very, very uneasy, sir’. He also said that the word ‘panic’ was ‘a little bit strong’, indeed an exaggeration. 42 I observed the plaintiff closely during his cross-examination. I formed the view that he tried to the best of his ability to describe his responses, and those of his shipmates, in the aftermath of the collision. He was not a man of many words, somewhat wooden and stoic in his approach and I formed the view that a few of the more colourful phrases on [scil in] his affidavit were not characteristic of him. 43 To the same effect was the cross examination directed towards a statement in the affidavit that the plaintiff ‘was still in a state of shock and disbelief’ at some stage after the collision. It was suggested to him that: ‘It is an exaggeration isn’t it to say you were in complete disbelief and terror?’ The plaintiff denied this. What is more the plaintiff’s affidavit does not say that he was ‘in a state of shock and terror’. It does say that he was ‘in a state of shock and disbelief’. This is a perfectly understandable response. Because personnel are trained to deal with emergency situations does not mean that they may not be shocked when such situations occur. A major collision between two naval vessels is likely to be a source of disbelief and shock for even well trained personnel. Furthermore one would expect that where there was lack of knowledge about the safety of Melbourne, a person on Melbourne may fear for his life. It has never been suggested in the course of the case that even strong, trained, disciplined men may not feel fear when confronted with what might be a life-threatening event. In this context it is relevant to note that the plaintiff said: ‘We were pretty scared’. 44 A close reading of the passages in the transcript relied on by the defendant under this heading do not substantiate the submission made by the defendant that the plaintiff was ‘a man willing to advance a spurious basis to provide a path of retreat’, nor do they undermine the general credibility of the plaintiff. I have come to this conclusion notwithstanding that the solicitor for the plaintiff did not give evidence. In this regard however it should be remembered that the questions relied on were directed to credit, not to an issue in the case.”

The defendant submitted that its case at trial focused on inconsistencies in the plaintiff’s position and his credit. It centred on two main themes; first, that despite seeing general practitioners regularly over a period in excess of thirty years, no suggestion of PTSD emerged before the plaintiff answered the solicitor’s advertisement in 1995 and secondly, that no complaint of the core symptom, his alleged nightmares, was made before 1998 notwithstanding his time in the sleep disorders clinic in 1995 and regular visits to doctors for minor complaints.

The importance of a history of specific nightmares is demonstrated by Dr Champion, the defendant’s expert, who gave this evidence in chief: “Q. And if the existence of nightmares was important, or may be important for diagnosis, particularly with PTSD, then absent a recounting of it by the patient you would expect questions about it and I’m just trying to find out why, if you got a negative answer, wouldn’t there be in the history no nightmares, no intrusive thoughts? A. Well, I think the answer to that is not everybody records negatives, and I think the answer also is somewhere in the diagnosis that Dr Wu arrived at, had he got a history of specific nightmares or intrusive recall, he would undoubtedly have made a diagnosis of PTSD. Q. If he asked about them. You see, he is dead and we don’t know. A. The prime diagnosis a person would look for in assessing somebody who had been through Mr Stankowski’s experience, the number one diagnosis that you would consider is, did this person have post-traumatic stress disorder, and there are other subsections you would look for as well afterwards, probably, possibly. But that is certainly, the major inquiry would have been along those lines.”

The questionnaire, exhibit D, from the solicitors James Taylor & Co, completed by the plaintiff and bearing the solicitors’ date stamp of 27 October 1995, includes in para 15 “Describe in your own words the physical and psychiatric injury suffered by you due to the collision: (e.g. psychiatric injuries; anxiety, neurosis, depression etc): NIGHTMARES ”

In the personal information form which the plaintiff completed for Dr Wu on 2 February 1996 he wrote under the request “Please describe (if any) long term psychological and medical problems:”: “ I DON’T KNOW IF I HAVE ANY PROBLEMS; I HOPE NOT, I DON’T KNOW HOW TO LOOK FOR THE[M] OR EVEN RECOGNISE THEM IF I DID HAVE THEM .”

Mrs Stankowski gave evidence. She met the plaintiff in December 1970 and had been married to him for thirty-one years. Asked about the plaintiff’s sleeping habits in the period after he left the Navy until he undertook the PTSD course, she said, in a passage already quoted, that the plaintiff used to sleep reasonably except that he would wake up on occasion with a gasp and go and look out the window and walk around. When Mrs Stankowski asked him what was causing this he would just say a nightmare and would not say any more about it.

Mrs Stankowski was cross-examined about the plaintiff’s drinking and smoking habits. She was asked to confirm that he went to a sleep disorders clinic to be investigated in the mid-1990s and that they diagnosed him with obstructive sleep apnoea. “That is a phrase you have heard many times, I suppose, since that date?” She answered “I have. He had the nightmares for many years before that sort of thing started happening.” She repeated this answer by saying: “He had the nightmares for many years before he put on weight or started having trouble with the sleep apnoea.” A little later she gave this evidence: “Q. See, just come now to this question of nightmares. You say that what you know about the matter is what you have been told by him, of course; is that correct? A. Yes. Q. You say that what you know of the matter is that on occasion he is woken with a start or a gasp – not a start, with a gasp you said? A. Yes. Q. And on inquiry from you, he just says, nightmare and that’s the end of it; is that it? A. That’s correct. Q. Is that something that has happened many , many times, is it? A. Over the years, yes. Q. Many times? A. Yes, it has. Many times. Q. Dating back to when, would you say? All the way back to the time you first met him? A. From when we started actually living together which wasn’t until seven months after we were married. Q. You see, that must have been a bit unsettling for you, was it? A. It was. Q. Did you wonder whether or not he ought to seek medical assistance in this regard? A. No, I didn’t.”

Reference was made by the cross-examiner to his attendance at the Reynella Medical Centre after 1979 with a variety of routine medical problems ranging from earaches to damaged toes, just routine medical matters. Mrs Stankowski was asked: Q. Did you ever suggest to him that it might be sensible for him to mention this constant problem of nightmares? A. No, I didn’t.”

As I have already recorded, O’Keefe J said that Mrs Stankowski “presented as a responsible, sensible, truthful person”. Consistently with her evidence, it was open to O’Keefe J to conclude that the plaintiff had experienced nightmares long before 1995. It was not suggested directly to Mrs Stankowski that her evidence about this was a concoction presumably made up in consultation with the plaintiff. As already noted, the failure, despite what appeared in 1995 in response to the solicitor’s enquiry, to report the nightmares to any medical person until 1998 or 1999 did not surprise Dr Holwill. According to him, it was typical when assessing “these people” that they have never told anyone about their symptoms, including their wives.

O’Keefe J was satisfied that following the collision the plaintiff had what are commonly called flashbacks or ruminations in respect of the events surrounding the collision and its aftermath. These were sometimes stronger than at other times but were frequent and recurrent. They were also distressing for him. In addition, at least from 1966 he had distressing dreams that involved images that could psychologically be related to the events of 10 February 1964. These were frequent, recurrent and had continued with varying intensity up to the time of the trial. His Honour did not in particular deal with the suggested significance of the plaintiff not, apparently, reporting his nightmares to Dr Wu even though he had reported it previously to his solicitor. But the trial Judge dealt with the matter in general terms as follows: “49 The suggestion that the plaintiff did not assert recurrent nightmares is not correct either. The plaintiff said that he had his first nightmare while he was at Manus Island. It was ‘very nasty’. He also said at the same time ‘I had more but that was the one that I recall that shook me the most’. Later in the course of his examination in chief he was asked if he had any nightmares after leaving Manus Island, to which he replied: ‘I have had them periodically ever since’. He said that in a particular month he ‘might have two or three bad ones (nightmares)’, and then a gap. The fact that he had nightmares is confirmed by Mrs Stankowski, although her evidence is that he was not forthcoming to her about their content. In my opinion this is understandable in view of the type of person he is. It is also understandable that for quite some time he did not make complaint to others about what he was experiencing. 50 The plaintiff is a man who has spent most of his life working in a male milieu. He was in the Navy for many years. He has worked at Moomba for very many years. The work on which he has been engaged is hard work. The plaintiff has clearly chosen such work and the milieux in which it is performed. He is a powerfully built man, who gives the impression of taking considerable pride in his masculinity. In colloquial language he could properly be described as ‘macho’. Like ‘Balmain boys’, such men do not cry; nor do they admit to weakness, or what they regard as weakness. Such men would not, in my opinion, be expected to admit publicly to recurrent nightmares. The plaintiff’s limited response to his wife to whom it was apparent that he was having a nightmare and which he admitted to her, is indicative of this. 51 In its written submissions the defendant was critical of the fact that the content of the nightmares suffered by him was not recorded. This was the criticism made of the plaintiff’s General Practitioner. It is also a criticism made in relation to the PTSD course. The defendant, whilst conceding that the plaintiff reported ‘terrifying nightmares’ was critical that their content was not disclosed. A like criticism was made in relation to Dr Holwill to whom it is said that no account of the content of the nightmares was given. I do not think that a criticism of this kind is realistic or significant, unless the content of the questions asked of the plaintiff and the answers given by him are known. Furthermore, it is a criticism that was made even after the plaintiff had been diagnosed as suffering from PTSD at the PTSD clinic at the relevant Repatriation General Hospital. 52 The foregoing in my opinion provide an adequate explanation, an explanation that I accept, as to why the plaintiff did not complain of nightmares for some time, even after they first occurred. Although the defendant submits that the plaintiff’s first reference to nightmares is to be attributed to the plaintiff’s desire to obtain monetary compensation, I do not think this is correct. Standing alone such reference is also consistent with the plaintiff having progressed to a stage that he could no longer put up with the concatenation of symptoms from which he was suffering, one of which was the nightmares that he was experiencing. In this context it should be noted in passing that when the plaintiff sought treatment for his PTSD through a Commonwealth agency, his symptoms improved. 53 It is well known that war service, or what are perceived to be life-threatening events, can and do produce adverse psychological effects. Many war veterans took a long time to admit to such things as fear, flash-backs, intrusive thoughts, nightmares and other psychological sequelae of their experiences. Such matters are common knowledge, such as a jury would take notice of, applying their common sense and experience. Is a judge in any different position? 54 When each of the matters raised by the defendant in its written submissions under the heading of ‘Credit’ is analysed, and when they are all taken in concert they do not, in my opinion, destroy or significantly impugn the credit of the plaintiff. In my opinion he presented as a credible witness. He conceded a number of matters adverse to his own interest and I accept him, in essence, as a witness of truth who in material respects was accurate, but who, by virtue of effluxion of time and other circumstances had some lapses of memory in respects which do not materially impact on my factual findings. 55 I do not think that Mrs Stankowski exaggerated. I do not think that she tried to make a better case for her husband than the facts support. She was a calm, considered lady who was in responsible employment. She was impressive in the witness box. I accept her as an essentially truthful and accurate witness.”

Particular criticism was directed at O’Keefe J’s comments in para 50 of his reasons for judgment. But his Honour’s observations, no doubt drawn from his own experience, can for this purpose be put aside. The failure to report the nightmares the plaintiff had experienced was explained by the medical evidence which it was open to O’Keefe J to accept and which was never challenged.

As O’Keefe J pointed out, the defendant’s medical evidence from Dr Roldan and Dr Champion proceeded on the basis that the plaintiff was untruthful and had embarked on a deliberate course of deception for the purposes of obtaining monetary compensation. As O’Keefe J explained in para 78 of his judgment, which I have quoted, the effect of the cross-examination of Dr Roldan was that Dr Roldan concluded that the plaintiff did not meet the criteria in DSM IV because Dr Roldan did not accept what the plaintiff said. In paras 80 through to 82, which I have quoted, O’Keefe J dealt with the evidence of Dr Champion who had only seen the plaintiff on one occasion. Like Dr Roldan, Dr Champion did not accept the history the plaintiff gave him. As a consequence he did not believe that the plaintiff had suffered PTSD as a result of his experiences in the Melbourne/Voyager collision. In O’Keefe J’s opinion, if the history given by the plaintiff as set out in Dr Champion’s report was accepted, the plaintiff did suffer PTSD. That history accorded with the findings that O’Keefe J made.

Part of the defendant’s submission to O’Keefe J, which is pressed on appeal, is expressed by saying that the plaintiff’s symptoms did not permit a diagnosis of PTSD according to the DSM IV criteria. The evidence was said to contradict a diagnosis of PTSD. Reliance was place upon significant discrepancies between the plaintiff’s history to his doctors and his oral evidence. Counsel for the defendant no doubt put to the plaintiff’s doctors every element of history and inconsistency likely to affect the diagnosis they had made. The diagnosis remained as found and accepted by O’Keefe J. As his Honour said, in the passage that I have quoted, Dr Holwill was cross-examined for almost a complete day but the cross-examination did not cause him to recant or deflect from the opinion that he had expressed. In the case of Professor McFarlane the cross-examination extended over two full days and various possible scenarios were put to him. The delay in the emergence of nightmares was dealt with as were the plaintiff’s drinking problems. His Honour said, as I have quoted it, that it was fair to say that virtually nothing that could have been put to Professor McFarlane was not put to him. He adhered to his opinion and his Honour accepted that opinion. It is not for this Court to gainsay his Honour’s acceptance of the opinions of Dr Holwill and Professor McFarlane by attempting, as the defendant seems to suggest, a diagnosis of its own.

To discredit the plaintiff’s case the defendant relied upon assertions that the plaintiff’s evidence was affected by discussion between family members and that the circumstance of the brother’s obtaining service benefits for PTSD played a part. The defendant also relied upon what was said to be exaggeration and variance in the plaintiff’s account of what he saw after the collision. Dr Wu recorded part of the plaintiff’s history to him as: “On the next day, there were ships everywhere fishing out bodies and they spent the day working as fast as they could go.”

O’Keefe J said: “18 The plaintiff was cross-examined about the events of 10 and 11 February 1964 on the basis of a history recorded by a Dr Wu. This history included a statement to the effect that on the day after the collision there were ships everywhere fishing out bodies. He was also cross-examined on evidence in chief that he had given that at about 8am on 11 February 1964 he went onto the Flight Deck and could see a couple of mine sweepers looking for survivors. It was suggested that this was just not probable and that by 8am Melbourne would have been far from the scene of the collision. The plaintiff adhered to his evidence. I thought he undoubtedly believed what he had said in this regard and on analysis it was not inherently improbable. 19 Melbourne set out for Sydney at approximately 3am at a very slow speed, described as slow ahead. At a later time the speed was increased to revolutions for 8 knots but this produced at best 6.5 knots through the water and the weather and wind conditions slowed Melbourne down even further, so that its best speed was in the order of 4.5 knots. It is not known for how long the vessel travelled at slow ahead before attaining 4.5 knots, however it took over 24 hours for the vessel to reach Sydney from the area of Jervis Bay. At that time of year it was getting light at 4.26am, i.e. even before sunrise (5.25am). There was thus likely to have been adequate light at the time the plaintiff says he went up onto the Flight Deck and saw back towards the scene of the collision.”

His Honour did a calculation which he said demonstrated the number of nautical miles between the eye of an observer and the horizon. However that may be, on the evidence it was not impossible that minesweepers were within sight of the Melbourne when daylight broke on the morning after the collision and that the minesweepers appeared to be searching for people or bodies in the water. I am not persuaded that the defendant has demonstrated that O’Keefe J failed to give appropriate weight to the matters upon which the defendant relied. I bear in mind, particularly, that, if not all, certainly most, of these matters were ventilated during the course of cross-examination of Dr Holwill and Professor McFarlane and failed to disturb their diagnoses. In my opinion, the trial Judge’s finding that the plaintiff suffered from severe chronic PTSD caused by his exposure to and involvement in the events surrounding the collision between the two vessels on 10 February 1964 should not be disturbed. I am not persuaded that O’Keefe J failed to use, or palpably misused his advantage, or acted on evidence that was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable in reaching the factual conclusions which he did. The findings that he made were, for the reasons I have given, well open to him. Damages

O’Keefe J dealt first with general damages and said: “86 I have already detailed many of the adverse effects to the plaintiff as a result of the PTSD from which he suffered. For a period in the order of 40 [years] he has suffered from these effects, although I am conscious that the recurrent nightmares did not commence until 1966 and that since 1999 or thereabouts (after he had attended the PTSD Clinic conducted by the Commonwealth at Daw Park and with the benefit of prescribed drugs) he improved somewhat, but by no means completely. I am satisfied that he continues to suffer and will suffer intrusive thoughts, nightmares, depression, a feeling of alienation as well as other symptoms of PTSD. 87 The defendant submitted that the plaintiff ‘makes non-specific claims of ongoing impact upon his life’, that ‘the PTSD course which he attended addressed his problems in large measure’ and that ‘there is no warrant to compensate him for his alcohol abuse in the 1970’s and early 1980’s’. In addition it has been advanced in diminution of his claim that he was ‘unaware of any impact over the 30 odd years before he was advised that he had PTSD’. These submissions do less than justice to the plaintiff and are inconsistent with the findings that have been made. The effects of PTSD on the plaintiff have been chronicled many times. They are significant and continuing. It is not correct to say that the effect of the PTSD Clinic ‘addressed his problems in large measure’. The plaintiff said that he thought it helped. This is confirmed by what he said to various doctors. But it helped only to a degree. He still experiences significant problems and needs medication. The fact that he was unaware of the causal relationship between the traumatic experiences in which he was involved on 10 February 1964 and, for example, his excessive drinking, his change in character or personality, his depression and his nightmares does not detract from their impact on him. Professor McFarlane gives ample evidence of the effects on people who do not know why they have changed, why they feel as they do, why they have detrimental experiences like depression, intrusive thoughts and nightmares. Having all those things, whilst not knowing why or denying their effects, in my opinion, is more likely to make the situation worse than to minimise it. 88 There is no standard figure for the general damages to which the plaintiff is entitled. The touchstone is reasonableness. A most important factor in assessing the general damages is the length of time for which the plaintiff has suffered from the effects of PTSD and that he will probably continue to suffer from them for the rest of his life, albeit at a level somewhat reduced from that which he experienced up to about late 1999. Doing the best I can I think an amount of $150,000 for general damages is appropriate. This amount relates to a total period of some 65 years, 40 of which have already gone by. The mathematical relationship between 40 years and 65 years is in the order of two thirds. However when regard is had to the fact that there has been a diminution to an extent to his symptoms since late 1999, I think it appropriate to allocate three quarters of the amount of $150,000 to the past and the residue to the future. On the basis of such an award the plaintiff is entitled to interest on that part of the damages that relate to the past. Senior counsel for the plaintiff has submitted that the rate at which interest should be allowed is 2%. At this rate of interest the amount to be awarded to the plaintiff by way of interest is $89,437.50. 89 I award the plaintiff $239,437.50 in respect of general damages and interest.”

The defendant on the appeal challenges this award on the basis that it was excessive. There is no exact measure of this and no precise error of principle in awarding the amount is suggested. It was pointed out that the plaintiff had functioned normally for decades without psychiatric treatment. His account of rebellious behaviour in the Navy was shown to predate the collision and his excessive drinking ceased in the early 1980s after pressure from his wife. He stated that until he saw Dr Phillips in 1998 he had no idea there was anything abnormal about his situation. He had no belief that he was ill. Quite wrongly in the written submissions the defendant relied upon his description to Dr Wu in February 1996 as outgoing, happy, friendly and a good mixer who can talk to people. This was clearly a description of himself before the collision. That part of Dr Wu’s report read: “He drank excessively only after the accident and was drunk most of the time. He would go ashore and get pissed and end up in the gaol. He threatened to kill an officer. This occurred in the presence of previously normal function. He had been outgoing, adventurous, happy, friendly and a very good mixer. He could talk to people, read a lot, could discuss things from most areas of knowledge and he enjoyed meeting people. This has changed since the collision between the HMAS Melbourne and the HMAS Voyager. He enjoys learning but he is now reserved and cynical and does not trust people as much as he used to. He feels very bitter and disillusioned with people. ‘What is it going to cost me’ is his approach to people now.”

In my opinion, the award of general damages is generous but not excessive. I would not interfere with it.

Ground 6 of the appeal included the claim that there was no proper basis for the award of damages for future psychiatric consultations and future medication. O’Keefe J said: “90 The defendant conceded that if Professor McFarlane was accepted, as he has been, the plaintiff is entitled “to some small sum to meet the possibility that the plaintiff will attend for further psychiatric assistance”. The plaintiff was born on 20 April 1945. He is now 59. He has a statistical life expectancy of approximately 22 years. The evidence of Professor McFarlane was that the plaintiff should see a psychiatrist on an occasional basis “probably every three months”. Such visits would cost between $180 to $200 for a standard 45 minute consultation. I think it is unlikely, having regard to the history of the plaintiff and the kind of man he is, that he would visit a psychiatrist as frequently as once every three months, so the figure of $12,277 calculated by the actuary needs to be reduced. I think the correct approach is to include a conventional sum of $7,500 to cover this aspect of the plaintiff’s damages. 91 I award the plaintiff $7,500 to cover the cost of future psychiatric consultations. 92 Senior counsel for the plaintiff has also claimed the costs of future medical treatment in the written submissions that have been prepared. Professor McFarlane considered the plaintiff’s condition to be relatively stable but this appears to be dependant on the use of prescribed drugs. The cost of his antidepressant at the present time is approximately $50 per month and he is likely to have to remain on that for life. Given his life expectancy the figure to be included in the judgment for antidepressants is $9,694.86. However in addition to this provision should be made for the cost of medication to help the plaintiff to sleep. In the absence of precise evidence as to the cost of such medication, I am of opinion that the appropriate approach for this item is to add a sum to the figure of $9,694.86 and as a consequence to award a round figure of $12,500 in respect of future medication. 93 I award an amount of $12,500 in respect of the costs of future medication. In doing so I note that it has been conceded by the defendant through its counsel that in the event that the plaintiff is found to have compensable PTSD, he has no entitlement to government assistance for the cost of such medication.”

No submissions were put on behalf of the defendant to this Court challenging his Honour’s findings or the reasonableness of the amounts awarded. I will deal separately with the inclusion of an amount representing the cost of psychiatric care in the actuarial calculation of the loss of the chance of qualifying for a pension. Loss of pension – Ground 7

The plaintiff claimed that, as a result of the psychiatric injury he sustained, he lost the value of the pension he would have received had he served twenty years in the Navy under the Defence Force Retirement Benefit Scheme (DFRBS) which was replaced in 1972 by the Defence Force Retirement and Death Benefits Scheme (DFRDBS). The plaintiff when he enlisted on 8 January 1961 was 15 years and 9 months old. His period of enlistment was for twelve years, that is until January 1973. He left the Navy at the end of this period of enlistment. He said in his evidence that before the collision he intended to remain in the Navy for the rest of his working life. Had he remained in the Navy for twenty years from the age of 18 (20 April 1963) the plaintiff would have been entitled to a Navy pension at least by 20 April 1983 or by January 1981 if he exercised the “buy back” entitlement whereunder after the introduction of the DFRDBS he elected to pay contributions for the service that occurred before he turned 18 so that his DFRDBS contributory service would have had a start date aligned with the start date of his joining the Navy; see exhibit M material supplied on 8 September 2003 by the Commonwealth Superannuation Administration (ComSuper). When the plaintiff was cross-examined about his claim to be compensated for the loss of his pension, he said that before the collision at the end of his twelve years of enlistment he “would probably have signed on” again. He intended to make the Navy his career. However, he said that after the collision he “would rather not go back to sea”. Had he signed on again he would have had to go back to sea.

O’Keefe J said: “95 I have no doubt that at age 15 years and 9 months or even at 19 years of age, the plaintiff may have been quite determined to make the Navy his career. But attitudes change over time and the possibility that he may not have re-joined the Navy in 1973 must be regarded as real. On 27 May 1972, he married a lady he had known for approximately 18 months, during most of which time he had been at sea. Even after he was married he was at sea most of the time. The result was that he and his wife saw each other for two weeks when they were married, one weekend the following August and thereafter not until he actually got out of the Navy. This is a consideration that goes to the likelihood of a young man re-joining the Navy. However, whilst he may not have rejoined, many young men who have wives whom they seldom see because of sea duties, still join or rejoin the Navy. The plaintiff and his wife did not have their first child until August 1974, so there would have been no pressure to leave the Navy arising from such a consideration. Furthermore it is relevant to note that for 25 years he has worked at Moomba, spending two weeks in Moomba and two weeks at home. Notwithstanding this he and his wife are still together. Mrs Stankowski would appear to be a person who tolerates the absence of her husband. 96 I do not doubt the sincerity of the plaintiff in saying that he had intended to rejoin the Navy when his term of enlistment expired in 1973. Whether he would have done so is however, another matter. At this remove in time it is difficult to determine whether he would or would not have rejoined the Navy. However there is a significant prospect that he might have done so, i.e. that there was such a chance. 97 I think the correct approach to this aspect of the plaintiff’s claim is to assess damages on the basis of assessing the degree of probability that he would have rejoined the Navy or might have done so and to adjust the award of damages to reflect the degree of probability. This is the approach that was adopted by Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643. Such an approach allows damages to be awarded even though the degree of probability is less than 50%, provided that it is not so low as to be regarded as speculative. 98 I am satisfied that there was a chance that the plaintiff would have rejoined the Navy in 1973 had he not suffered the adverse effects of the psychological disorder that resulted from his involvement in the collision between Voyager and Melbourne. That chance is certainly not speculative. It is however less than 50%. The assessment of the degree of probability of such an event occurring is a matter of judgment. I assess the chance that was lost at a degree of probability of 25%.”

Based on actuarial calculations prepared by Cumpston Sarjeant Truslove Pty Ltd, consulting actuaries, on 6 October 2003, which were not challenged, his Honour awarded the plaintiff $56,250 “in respect of the losses consequent upon the loss of the chance of rejoining the Navy in 1981 [sic]”. What O’Keefe J must have meant was rejoining the Navy in 1973 and continuing in service until 1981 having elected to pay contributions for his service back to the date of his enlistment in January 1961 (the buy back election).

The defendant’s submissions on appeal were substantially directed to the 25 per cent probability said not to take account of the probability that the plaintiff, even if he re-enlisted in 1973, would leave the Navy before the expiry of the twenty year period.

A conventional approach to a claim for the loss of the right to a pension as from a future retirement date is described by Gibbs CJ and Wilson J in Todorovic v Waller (1981) 150 CLR 402 at 426; compare per Murphy J at 454-5 and see Luntz, Assessment of Damages for Personal Injury and Death, 4th ed at 5.3.5. In Todorovic the pension payable on his retirement to the plaintiff, who had suffered personal injuries rendering him virtually unemployable before the age of thirty-five, was a percentage of his gross salary at retirement. The Court of Appeal, from which the appeal to the High Court was brought, assumed one of the several choices open to the plaintiff to enhance his pension entitlement, then determined what the plaintiff’s expectation of life would have been had he survived until the postulated date of retirement, worked out the figure he would have received had the pension been paid and after making a small deduction for what the plaintiff in fact received on retirement, made a percentage deduction for the vicissitudes of life, thus arriving at the amount of his loss. In that case it was unnecessary for the High Court to pass upon the appropriateness of that approach, though the High Court noted that the Court of Appeal had calculated the plaintiff’s expectation of life from the assumed date of retirement not from the date of trial.

In Norris v Blake (No 2) (1997) 41 NSWLR 49 at 67 Clarke JA (with whom Handley JA and I agreed) pointed out that Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 did not change the way damages are assessed for future economic loss. His Honour said: “On the other hand, it did emphasise the need to take account of the various possibilities which might otherwise have affected earning capacity. That this is what Malec stands for is made particularly clear by the High Court in Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 498. The High Court there reiterated the proposition that where, for instance, promotion in the future may have occurred, all that had to be established was a real possibility of promotion. The court was then bound to take that possibility into account. The majority (at 499) was further of the opinion that ‘damages founded on hypothetical evaluations defy precise calculation’ (per Brennan J and Dawson J in Malec (at 640)), and that the discount to be allowed for the possibility that the appellant’s previous injury might have resulted in her impaired earning capacity was at best ‘a matter of impression’.”

In Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 505-6, this Court (Sheller, Stein and Giles JJA) said: “Therefore the customary course of taking a hypothetical exercise of an uninjured earning capacity until retirement, then making an allowance for vicissitudes, is a way of arriving at the degree of probability of the future hypothetical event of the exercise of that earning capacity. Although in many cases the hypothetical exercise of earning capacity is not controversial, it may be, so that the vicissitudes include allowance for the validity of the hypothesis as well as for the imponderables or chances affecting its realisation.”

That was the exercise that O’Keefe J was required to undertake in the present case. Neither party challenged his methodology at trial or on appeal.

During argument on the appeal, members of the Court expressed doubt about a claim based solely on the loss of a chance to qualify for a pension in the early 1980s about ten years after the plaintiff had chosen not to re-enlist and had left the Navy of his own accord without paying regard to his earnings during the period between retirement in 1973 and pension eligibility in 1981 or 1983. The period was a closed period at the end of which, if the plaintiff had remained in the Navy, he would have been entitled to the pension. Evidence was put before the Court about the value of that pension. The trial Judge treated the claim as one for the loss of a chance, an approach which seems to have been duplicated in a similar claim, Brittain v The Commonwealth of Australia [2004] NSWCA 83 at [20] and following in the judgment of Handley JA.

The plaintiff submitted in argument that the only issues were whether the plaintiff would but for the collision have spent the whole of his adult life in the Navy or alternatively served the further term required to qualify for a pension and what, if any, promotion would have occurred before his right to the pension accrued. In Ground 7(c) of the grounds of appeal the defendant claims that O’Keefe J erred in allowing any amount when the plaintiff had failed to establish that the value of any lost chance of a pension exceeded any amount by which his actual earnings outside the Navy between 1973 and 1981 exceeded what he would have earned in the Navy during that period if he continued to serve.

It is not clear to me that this point was ever argued at the trial. In his Pt 33 particulars the plaintiff gave particulars of employment history which included particulars of past earnings from civilian employment expressed as gross earnings and totalling $86,335.71. The particulars continued: “The plaintiff claims no economic loss from the 8.1.81 to the present save the loss of his Navy pension from 8.1.81 for life based on the rank of WO1. The difference between what the plaintiff would have earned had he stayed in the RAN and what he actually earned between 8.1.73 and 8.1.81 is: ‘RAN - $100,313.31 less tax 23% $77,241.25 Approx civilian - $86,335.71 less tax 23% $66,478.50 Net loss between 8.1.73 and 8.1.81 $10,762.75’ The plaintiff claims interest thereon from 8.1.81.” However, this claim was not pressed at the trial so these particulars were never tested.

As counsel for the defendant put it, before written submissions were furnished to the trial Judge, when referring to the Cumpston Sarjeant report: “Ultimately, on the question of damages which we will address against the possibility. HIS HONOUR: I haven’t any evidence at all about that, have I. Have I got – I sorry I’ve got the report from the accountant. BURBIDGE: Yes. Cumpston Sarjeant. HIS HONOUR: But there is nothing contrary to that in the defendant’s case, is what I am trying to get at. BURBIDGE: No, the mathematics of that report are common. Are agreed. The application of it, we will simply say is that there is no evidence of any emotional loss and it fails to deal with it. Second, we will submit there is clear evidence that the plaintiff did not fail to rejoin the navy, in 1973, by reason of the collision, and reference will be made to his evidence and that of his wife, in that regard. And perhaps even in the absence of any assertion to that effect to any of the doctors, but we will look at that. Ultimately, we will be saying that if your Honour came to consider the matter it would fall to give him general damages only. Perhaps there may be some evidence on which it will be open to find some future outgoing component but other than that we believe that to be the totality of the heads of damages which are open on the evidence. HIS HONOUR: But, in any event, I suppose the defendant says, as you said in the course of the argument at one stage, that the most that the plaintiff could claim to have lost was the chance of serving time again in the navy for the duration that would get him a pensionable age. BURBIDGE: Yes. HIS HONOUR: That’s the critical thing in the largest component that is put forward by the plaintiff, I think. BURBIDGE: We will wait to see how my learned friend puts it in due course but I think we may be in agreement as to the methodology, that which has to be proved on the balance of probabilities and becomes a 100 per cent or nothing concept versus that area which is loss of chance area. We may agree on the approach in that area. That is the general outline of the defendant’s case.” It seems to me consistent with what Mr Burbidge there said and with the way that the trial Judge dealt with the matter, that the only issues were whether, but for the accident, the plaintiff would have re-enlisted and remained in the Navy until he became eligible for the pension, whether as a result he lost the chance of a pension and whether his Honour’s assessment of the value of that chance was within the appropriate range.

Counsel for the plaintiff said: “MELICK: … I should mention just for my learned friend’s benefit; we say in relation to the loss of chance there is no evidence of any other causative factor for the plaintiff to leave the navy except for hypothesis – there may be some suggestion it was because he got married or something like that. HIS HONOUR: It did occur to me, I must say, when I was looking at a sequence of events, a timeline, that I had mapped out, that it might have been put to the plaintiff that he left the navy because he had been married and was expecting a family. But I don’t recall that being put to the plaintiff. MELICK: It wasn’t. And the evidence from both the plaintiff and his wife was that so far as his wife was concerned, if I remember him correctly, he had indicated to her he was determined to leave the navy at the 12 year mark. He had already made that determination. He said that some time, not that long after the Melbourne/Voyager collision, and it’s also relevant to note of course he had no job to go to. And because there are no other reasons advanced, or put to the plaintiff, that speculation should not amount to any more than what we say would be a very generous one third reduction. That is, generous from the defendant’s point of view. Your Honour should also note we have been very conservative. The plaintiff’s evidence was he would have stayed in the navy until 55. We haven’t even attempted to evaluate a pension until the age of 55, we have done it on the bare 20 years. There will have to be some calculation about how much it would have cost the plaintiff to buy back the two years and one month. HIS HONOUR: That is two or two-and-a-half years, whatever it is, up to 18? MELICK: I think it is under $300. HIS HONOUR: Is that in evidence? MELICK: No, But the way to work it out, it is contained in the ComSuper report which tells you how to work it out, and the Cumpston and Sargeant report contains the pay rates for those years. I understand that the pay rates themselves aren’t to be in dispute, it’s a question of whether you would have achieved certain pay rates by virtue of achieving higher rank. HIS HONOUR: You no doubt will refer to those in your written submissions.”

The ComSuper report was dated 8 September 2003 and was in evidence. Under the heading “What is the Role of this Office” the report contained the following: “After turning 18, Mr Stankowski would have joined the Defence Force Retirement Benefits (DFRB) scheme. The Defence Force Retirement and Death Benefits (DFRDB) scheme came into existence on 1 October 1972, and replaced the DFRB scheme. All contributors to the DFRB scheme became contributors to the DFRDB scheme, and were eligible for benefits under the DFRDB scheme. Following the introduction of the DFRDB scheme all members who joined the DFRB scheme under the age of 18 had the opportunity to elect to pay contributions for the service that occurred before they turned 18, so that their DFRDB contributory service start date would then align with the start date they joined the Navy.”

In the plaintiff’s statement of claim the plaintiff gave particulars of loss of earning capacity as follows: “(d) Prior to the said collision the Plaintiff had anticipated a full naval career with regular promotional advancement and, thereafter; to commensurate DFRDB pension entitlements. His career was cut short by reason of his injuries. Further, as a result of his untimely discharge from the Navy and subsequent dislocation in civilian employment the plaintiff’s earning capacity has been, and continues to be adversely affected. More precise particulars will be supplied prior to trial.”

The statement filed pursuant to Pt 33 r8A dealt first with “Past Earnings from Civilian Employment” which I have already set out and claimed the difference between what the plaintiff would have earned had he stayed in the Navy and what he actually earned between 8 January 1973 and 8 January 1981. This claim was not pressed. There followed “Particulars of Economic Loss”. The plaintiff asserted that his naval career was ended prematurely by reason of the injuries he sustained in the collision and that but for those injuries he would have continued in his service with the Navy with an anticipated retirement date on 8 January 1981 and would have attained at least the rank of Warrant Officer. The statement said: “The plaintiff claims no loss of earnings from the 31st May 1977 to the present save that represented by the loss of his Navy pension which was to take effect on the 8th January 1981.”

The particulars that followed related to his actual naval earnings from 1 January 1967 and what, but for his injuries, he could have earned in the Navy from 1 January 1967 to 7 January 1973 with stipulated average promotion times in rank as set out. That claim was not pressed. The particulars then went on to deal with income, assuming promotion, at the average maximum time in each rank. That claim was not pressed. Under the heading “Loss of Navy Pension” appeared the following: “In addition, the Plaintiff claims that had he retired from the Navy on 7.1.81 at the rank of W.O.1 he would have been entitled to a lump sum (Superannuation) Comsuper payment of $27,068.86 In addition, the Plaintiff would have been entitled to weekly Comsuper pension of $115.08 per week.” The particularised claims to the loss of Navy pension are all based upon retirement on 7 January 1981 and therefore assume that as a result of a buy back the plaintiff would have been entitled to a pension from that date.

There followed calculations on this assumption. In the result, the trial Judge described the calculation for loss of pension as follows: “99 The actuaries calculations relating to the level of pension and its present value make certain assumptions as to the possible promotion of the plaintiff had he re-enlisted in the Navy and remained as an enlisted man until he had completed 20 years of service. Their figures vary according to the assumption made as to the rank attained. I think it would be appropriate to take a figure of $300,000 as the present full lump sum value of pension rights, the chance to secure which was lost by the plaintiff. This figure is based on a mathematical computation. It takes no account of the vicissitudes of life. Whilst all such vicissitudes are not adverse, many are, especially in the way of life assumed for the purposes of this element of the damages. In my opinion a discount of 25% is appropriate for the vicissitudes of life. This reduces the figure of $300,000 to $225,000. This figure needs to be further reduced to the 25% referred to above as the assessment of the chance. The result is $56,250.” His Honour made the award to which I have already referred. To this, his Honour added interest. In the written submissions, the defendant directed attention to the percentage.

The plaintiff has filed a cross-appeal claiming that the trial Judge’s assessment of the chance that the respondent would have re-joined the Navy in 1973 at only 25 per cent bespoke error. The plaintiff relied upon the report of Cumpston Sarjeant of 6 October 2003, which computed the value of the pension in various circumstances. It is not at all clear from the pleading or particulars what precisely was the issue on this part of the claim.

The impression I have from reading the material is that the plaintiff abandoned any claim for past economic loss during the closed period until 8 January 1981 and concentrated on the claim for the loss of the pension entitlement. As to that, the issues joined were whether he would have re-enlisted in 1973 and if he did so whether he would have remained until his pension right accrued. While the evidence given by the plaintiff is less emphatic than O’Keefe J’s account of it, I have no difficulty in accepting that there was a chance that, but for the accident, the plaintiff would have re-enlisted and, having re-enlisted, remained in the service until the right to the pension accrued. I would have no difficulty in finding that had he re-enlisted there was a good chance that he would remain until he qualified for the pension bearing in mind that that would have allowed him to leave the Navy with either a lump sum or a significant regular payment while he was young enough to seek other employment. I accept that his Honour gave no clear indication of where the rounded figure of $300,000 was taken from but again I would conclude that it was taken from the actuary’s report.

Under the heading “Scenario Three – Promoted to Petty Officer” a total is shown of $298,682 arrived at as follows: Source Loss DFRDB lump sum D1 21,419 DFRDB pension received to 29/9/03 D3 112,693 DRFDB pension received from 29/9/03 to age 65 D4 42,012 DFRDB pension received from age 65 D5 110,184 Less DFRDB member contributions D6 5,485 Total loss of DFRDB 280,843 Plus cost of psychiatric care 17,839 Total $298,682

The references to D1 etc under the heading Source are to appendix D to the report where the after tax superannuation benefit or lump sum and then the pension amounts receivable after the assumed date of retirement, 8 January 1981, are calculated. No challenge was made to these calculations, but the claim for cost of psychiatric care was disputed by the defendant as duplicating the award of damages that O’Keefe J made under that head, to which I have already referred. The trial Judge awarded $7,500 to cover the cost of future psychiatric consultations and a further $12,500 for future medication. The trial Judge’s calculation of the value of the lost pension right must be moderated by reducing the starting figure of $300,000 to $280,000, that is to say rounding off the Cumpston Sarjeant total loss of DFRDB in its report “Scenario Three”, namely $280,843, before adding the cost of psychiatric care. If the same discount figure of 25 per cent chosen by O’Keefe J is adopted as appropriate for the vicissitudes of life, this produces $210,000. Applying the degree of probability of 25 per cent, favoured by O’Keefe J, this produces $52,500 which should be substituted for the award of $56,250 in respect of the lost chance of re-joining the Navy in 1973 and remaining in the Navy until 1981, having made the appropriate contribution to produce the pension entitlement in that year. The interest awarded on the damages for the lost chance by his Honour was $62,163.64 which must also be adjusted to $58,019.40. The total damages then become $369,956.90.

The defendant resisted this claim on two grounds at the trial, first that the trial Judge should not be persuaded that, even if the accident had not occurred, there was any chance that the plaintiff would remain in the Navy after 1973 and, secondly, if there was such a chance, that it was a 25 per cent chance. The trial Judge had already made a significant reduction for vicissitudes. As I have said, I am quite satisfied that there was a chance that the plaintiff would have stayed on and become entitled to the pension and I am not persuaded that his estimate of 25 per cent is outside the appropriate range. For like reason I am not persuaded that as claimed by the plaintiff in his cross-appeal a higher percentage should have been awarded. The plaintiff referred to his evidence that he thoroughly enjoyed the Navy, that despite substantial problems with naval life after the collision he fulfilled his twelve year contract, that he was aware of the benefits to be gained from serving twenty years from the age of twenty, that after leaving the Navy his employment involved similar skills to those he utilised in the Navy and that his work at Santos involved long periods away from home after his marriage. The point was also made that the defendant led no evidence as to the percentage of 1961 enlistees who served twelve years and then remained in the Navy for at least twenty years. The plaintiff claimed that 75 to 80 per cent would be appropriate. No doubt the figure chosen by O’Keefe J was chosen as a matter of impression but that is an impression reached after having heard the plaintiff and his wife give evidence. I do not think this Court can interfere. Accordingly, the cross-appeal should be dismissed. Interest on costs

In a separate judgment on 22 March 2004 O’Keefe J dealt with an application by counsel for the plaintiff that pursuant to s95(3) of the Supreme Court Act 1970 the plaintiff was entitled to an order that interest be paid on the costs that the defendant was ordered to pay. O’Keefe J said: “Since the costs in an action as long as this will be an important matter, it seems to me that the interests of justice support a conclusion that the plaintiff should not be deprived on the interest on the amount of costs assessed. Accordingly I am of opinion that the correct order to make is that interest on the amount of the costs assessed be paid by the defendant, such interest to accrue as from 21 days of the day of filing or lodgement for assessment by the plaintiff of its bill of costs, and I so order.”

The defendant submitted that O’Keefe J erred in awarding interest on costs assessed to accrue from 21 days of the filing or lodgement for assessment by the plaintiff of its bill of costs. It is now settled that the Court has power to award interest to be paid on the amount of costs ordered.

Section 95(4) of the Supreme Court Act is a particular power to order that interest be paid “from the date or dates when the amount in respect of costs was duly paid”. That power was not invoked in this case. Section 95(1) provides that where judgment is given or an order is made for the payment of money, interest shall, unless the Court otherwise orders, be payable at the prescribed rate from the date when the judgment or order takes effect on so much of the money is from time to time unpaid. However, this has to be read with s95(3) which provides that notwithstanding subs(1) “where, in proceedings for damages on a common law claim, the court makes an order for the payment of costs and the costs are paid within 21 days after ascertainment of the amount of the costs by assessment under Division 6 of Part 11 of the Legal Profession Act 1987 or otherwise, interest on the costs shall not be payable under subs(1) unless the court otherwise orders”. O’Keefe J was asked otherwise to order.

There has been a running debate which was described in the judgments of this Court in Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342 about whether, once the costs payable are ascertained, such interest could or should be ordered to be payable from the date upon which the order for costs was made (the incipitur rule) or from the date of ascertainment of the amount of the costs by assessment (the allocatur rule). In Carson this Court held that interest is payable on such costs from the date upon which the order for costs was made, not from the date of ascertainment of the amount of the costs by a certificate of taxation or otherwise .

O’Keefe J chose a mid-way point, namely 21 days of the day of filing or lodgement for assessment by the plaintiff or its bill of costs. There is no doubt that O’Keefe J had power to make such an order. The only question is whether there was some error in the exercise of his discretion. The argument submitted was that no proper basis for the making of the order existed and that it failed to recognise the reality of the negotiations which inevitably follows submission of an ambit assessment. The effect of the order was said to be punitive since no crystallised sum was available when the order commenced to operate and the respondent would have no incentive to negotiate with the appellant. But this observation is true of the recognised incipitur rule and overlooks the fact that interest only runs on the amount ultimately appropriately assessed or ascertained. The power invoked was that under s95(3) the substance of which I have set out.

I am not inclined to interfere with the exercise of his Honour’s discretion which appropriately took account of the length of the proceedings and the amount the plaintiff would be out of pocket until such time as the costs were assessed and paid. I would reject this ground of appeal. Costs

The defendant has succeeded in varying the amount of damages by a relatively small amount. In my opinion, having failed on the principal issue about liability, the defendant as appellant should pay the respondent/plaintiff’s costs of the appeal. Orders

I propose the following orders: 1. Appeal allowed; 2. Set aside the verdict and judgment for the plaintiff in the sum of $377,851.14 and in lieu thereof order that there be a verdict and judgment for the plaintiff in the sum of $369,956.90; 3. Otherwise confirm the orders of O’Keefe J in relation to the payment of costs of the trial and interest on costs; 4. The appellant to pay the respondent’s costs of the appeal; 5. Cross-appeal dismissed with costs.

HODGSON JA: I agree with the orders proposed by Sheller JA.

On the issues arising from the discharge of the jury, I agree with the conclusions and reasons of Sheller JA.

On the issues arising under grounds 2, 3, 4 and 6 of the Notice of Appeal, I agree substantially with the reasons of Sheller JA, but make the following additional observations.

The primary thrust of the appellant’s complaints was that the primary judge did not address the case it sought to make out, in particular as to inaccuracies in the histories on the basis of which the respondent’s medical experts reached their opinions, and as to the (lack of) admissibility and or weight of these opinions, having regard to the differences between these histories and the facts as established by evidence in the case. Mr. Burbidge QC for the appellant drew attention particularly to the appellant’s case against acceptance (1) that the respondent felt intense fear, helplessness and/or horror at the time of the traumatic event, and (2) that he had recurrent distressing dreams of the event (nightmares); and also to the weight placed by the respondent’s medical experts on histories involving these two elements.

When considering that kind of complaint, it is pertinent to have regard to the extent to which the evidence and submissions raised issues that called for explicit discussion: cf. Misfud v Campbell (1990) 21 NSWLR 725 at 728.

The main bases of the appellant’s case were, on the first of the two matters identified, an admission by the respondent that he did not believe the Melbourne was sinking, and a withdrawal of an assertion of panic; and on the second of them, a lack of complaint of nightmares to medical practitioners for many years after they allegedly commenced.

On the former matter, however, the relevant question and answer in cross-examination about sinking related to a particular time, and it was not put to the respondent, nor did he admit, that at no time did he think the Melbourne would sink; and there was no withdrawal by him of assertions of fear, shock and horror. And on the latter matter, the respondent’s evidence of nightmares was supported by unchallenged evidence from his wife. In those circumstances, I do not think the appellant’s case against acceptance of the respondent on the matters identified required more specific attention than that which was given by the primary judge, in his assessment of the credibility of the respondent’s evidence.

Turning to the appellant’s complaints about differences between the histories relied on by the respondent’s experts and the facts established, the relevant principle is that histories assumed by experts must be “sufficiently like” those established “to render the opinion of the expert of any value”: Paric v John Holland (Constructions) Pty. Limited (1985) 59 ALJR 844 at 846. That issue was exhaustively explored in cross-examination of the relevant experts, who nevertheless maintained their opinions. So again, I do not think the appellant’s case based on differences between histories and facts established required more specific attention than was given by the primary judge.

On issues concerning damages, again I agree substantially with the reasons of Sheller JA, but make some additional observations.

I do not think it necessary to express a view as to whether the assessment of general damages was generous or moderate: it suffices to say it was not outside the available range.

On the question of the loss of the pension, in my opinion it would have been open to the appellant, at the trial, to submit that this should be considered as part of a claim for the economic consequences of loss of earning capacity, or at least that the respondent had an onus to show that the loss of the pension (or loss of the chance of a pension) was not counter-balanced by higher earnings outside the Navy. However, the appellant permitted the claim for loss of the pension (or chance of a pension) to be dealt with as a discrete and independent head of damages; and in those circumstances it is too late to contend to the contrary on appeal.

BRYSON JA: There may have been room to compare all earnings and superannuation which the respondent would have received if he had remained in the Navy with all earnings and gains from the employment he actually obtained. This approach to assessment of damages for loss of chance of superannuation was not in issue at the trial, or on appeal. The issues which the parties contested set confines within which the allowance of damages for this element, with the variation proposed by Sheller JA, is the correct outcome.

In my opinion the award of general damages made by O’Keefe J was moderate, in relation to the findings made by his Honour. I respectfully differ from the view of Sheller JA at para [108] that the award was generous. To my mind it is possible that, if damages were assessed again, this award might be exceeded: the possibility is sufficiently recognizable to weigh as a factor against granting a new trial on the application of the appellant.

The observations I have made are of small significance overall. In other respects I agree with Sheller JA. I agree with the orders which his Honour proposes.